Nils Jansen
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199588763
- eISBN:
- 9780191723315
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199588763.001.0001
- Subject:
- Law, Philosophy of Law
Accounts of the nature of legal authority typically focus on the authority of officially sanctioned rules issued by legally recognised bodies — legislatures, courts, and regulators — that fit ...
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Accounts of the nature of legal authority typically focus on the authority of officially sanctioned rules issued by legally recognised bodies — legislatures, courts, and regulators — that fit comfortably within traditional state-centred concepts of law. Such accounts neglect the more complex processes involved in acquiring legal authority. Throughout the history of modern legal systems, texts have come to acquire authority for legal officials without being issued by a legislature or a court. From Justinian's Institutes and Blackstone's Commentaries, to modern examples such as the American Law Institute's Restatements and the UNIDROIT Principles of International Commercial Contracts, academic codifications have come to be seen as legally authoritative, and their norms applied as such in courts and other contexts. How have such texts acquired legal authority? Does their authority undermine the orthodox accounts of the nature of legal systems? Drawing on examples from Roman law to the present day, this book offers a comparative analysis of non-legislative codifications. It offers a contribution to the debates surrounding the harmonisation of European private law, and the growth of international law.Less
Accounts of the nature of legal authority typically focus on the authority of officially sanctioned rules issued by legally recognised bodies — legislatures, courts, and regulators — that fit comfortably within traditional state-centred concepts of law. Such accounts neglect the more complex processes involved in acquiring legal authority. Throughout the history of modern legal systems, texts have come to acquire authority for legal officials without being issued by a legislature or a court. From Justinian's Institutes and Blackstone's Commentaries, to modern examples such as the American Law Institute's Restatements and the UNIDROIT Principles of International Commercial Contracts, academic codifications have come to be seen as legally authoritative, and their norms applied as such in courts and other contexts. How have such texts acquired legal authority? Does their authority undermine the orthodox accounts of the nature of legal systems? Drawing on examples from Roman law to the present day, this book offers a comparative analysis of non-legislative codifications. It offers a contribution to the debates surrounding the harmonisation of European private law, and the growth of international law.
Iain McLean
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199546954
- eISBN:
- 9780191720031
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199546954.003.0002
- Subject:
- Political Science, Comparative Politics, UK Politics
Sir Alan Lascelles states the constitution (except the bits we are not allowed to know about) in an anonymous letter ‘The doctrine of parliamentary supremacy since Blackstone’. Bagehot; Dicey; Low; ...
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Sir Alan Lascelles states the constitution (except the bits we are not allowed to know about) in an anonymous letter ‘The doctrine of parliamentary supremacy since Blackstone’. Bagehot; Dicey; Low; Amery; Jennings; Laski. The rule of law.Less
Sir Alan Lascelles states the constitution (except the bits we are not allowed to know about) in an anonymous letter ‘The doctrine of parliamentary supremacy since Blackstone’. Bagehot; Dicey; Low; Amery; Jennings; Laski. The rule of law.
Steven K. Green
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195399677
- eISBN:
- 9780199777150
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195399677.003.0005
- Subject:
- Religion, History of Christianity, Religion and Society
This begins a three-chapter discussion of legal disestablishment, of the development and decline of the maxim that Christianity formed part of the common law. It traces the origins of the maxim in ...
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This begins a three-chapter discussion of legal disestablishment, of the development and decline of the maxim that Christianity formed part of the common law. It traces the origins of the maxim in higher-law notions, British common law, and Puritan legal codes. It discusses the influence of jurists William Blackstone, Joseph Story, and James Kent and the maxim’s early application in blasphemy and Sunday law cases. The chapter argues that the maxim influenced early legal attitudes toward understandings of disestablishment.Less
This begins a three-chapter discussion of legal disestablishment, of the development and decline of the maxim that Christianity formed part of the common law. It traces the origins of the maxim in higher-law notions, British common law, and Puritan legal codes. It discusses the influence of jurists William Blackstone, Joseph Story, and James Kent and the maxim’s early application in blasphemy and Sunday law cases. The chapter argues that the maxim influenced early legal attitudes toward understandings of disestablishment.
Mark Weston Janis
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579341
- eISBN:
- 9780191722653
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579341.003.0001
- Subject:
- Law, Public International Law, Legal History
English jurist, William Blackstone's Commentaries, published between 1765 and 1769, transmitted the common law's traditional perception of the law of nations to American lawyers who would declare ...
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English jurist, William Blackstone's Commentaries, published between 1765 and 1769, transmitted the common law's traditional perception of the law of nations to American lawyers who would declare national independence, structure a government, and lead a New Republic. English philosopher Jeremy Bentham, displeased with Blackstone's law of nations, fashioned a new and lasting term international law in 1789, notably also the first year of US Constitutional government, Washington's inaugural term as President, and the French Revolution. Although Americans happily conflate the two terms, they have long struggled to reconcile Blackstone's and Bentham's competing notions about the nature of the discipline, however it be named. This chapter begins with Blackstone's use and understanding of the traditional concept of the law of nations. It moves on to the creation of Bentham's new term, international law, then to Bentham's reconciliation of international law with his views about law in general, contrasting Bentham's perceptions with those of his disciple, John Austin. I0074 presents Bentham's notions about the possible role of international law in a universal and perpetual peace. Finally, the chapter offers an analysis of some of the implications of Bentham's posited and widely accepted equivalence of international law and the law of nations. By understanding the important differences between Blackstone's classical concept of the law of nations and Bentham's influential conception of international law, we put ourselves in a better position to comprehend and appraise some of the conflicts among subsequent American approaches to the discipline. The general aim is to help explain how Americans have gotten to where they are with this discipline.Less
English jurist, William Blackstone's Commentaries, published between 1765 and 1769, transmitted the common law's traditional perception of the law of nations to American lawyers who would declare national independence, structure a government, and lead a New Republic. English philosopher Jeremy Bentham, displeased with Blackstone's law of nations, fashioned a new and lasting term international law in 1789, notably also the first year of US Constitutional government, Washington's inaugural term as President, and the French Revolution. Although Americans happily conflate the two terms, they have long struggled to reconcile Blackstone's and Bentham's competing notions about the nature of the discipline, however it be named. This chapter begins with Blackstone's use and understanding of the traditional concept of the law of nations. It moves on to the creation of Bentham's new term, international law, then to Bentham's reconciliation of international law with his views about law in general, contrasting Bentham's perceptions with those of his disciple, John Austin. I0074 presents Bentham's notions about the possible role of international law in a universal and perpetual peace. Finally, the chapter offers an analysis of some of the implications of Bentham's posited and widely accepted equivalence of international law and the law of nations. By understanding the important differences between Blackstone's classical concept of the law of nations and Bentham's influential conception of international law, we put ourselves in a better position to comprehend and appraise some of the conflicts among subsequent American approaches to the discipline. The general aim is to help explain how Americans have gotten to where they are with this discipline.
David Francis Taylor
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780199642847
- eISBN:
- 9780191738869
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199642847.003.0002
- Subject:
- Literature, Drama, 18th-century Literature
This chapter affirms the degree of Sheridan’s engagement with contemporary politics well before he entered the House of Commons in 1780. The first section, drawing upon unpublished manuscript ...
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This chapter affirms the degree of Sheridan’s engagement with contemporary politics well before he entered the House of Commons in 1780. The first section, drawing upon unpublished manuscript material, introduces Sheridan’s radical response to the American Revolution, and considers his notes on Samuel Johnson’s loyalist pamphlet Taxation No Tyranny (1776) and William Blackstone’s Commentaries on the Laws of England (1765–9). The second section then turns to two of Sheridan’s comic afterpieces—St Patrick’s Day (1776), a farce which quietly glosses the complexities of Ireland’s relationship to Britain, and The Camp (1778), a satire on the military mania that swept across the country in the late 1770s—placing these dramas within the specific context of the American War of IndependenceLess
This chapter affirms the degree of Sheridan’s engagement with contemporary politics well before he entered the House of Commons in 1780. The first section, drawing upon unpublished manuscript material, introduces Sheridan’s radical response to the American Revolution, and considers his notes on Samuel Johnson’s loyalist pamphlet Taxation No Tyranny (1776) and William Blackstone’s Commentaries on the Laws of England (1765–9). The second section then turns to two of Sheridan’s comic afterpieces—St Patrick’s Day (1776), a farce which quietly glosses the complexities of Ireland’s relationship to Britain, and The Camp (1778), a satire on the military mania that swept across the country in the late 1770s—placing these dramas within the specific context of the American War of Independence
Lackland H. Bloom
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780195377118
- eISBN:
- 9780199869510
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195377118.003.0003
- Subject:
- Law, Constitutional and Administrative Law
This chapter considers the various pre-constitutional sources that the Court relies on to discover the original understanding as well as the uses that it has made of material relating to the drafting ...
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This chapter considers the various pre-constitutional sources that the Court relies on to discover the original understanding as well as the uses that it has made of material relating to the drafting and ratification process. First, it discusses the Court's use of English and common law history, the influence of William Blackstone, colonial history, the Declaration of Independence, the Articles of Confederation, and the Virginia experience with freedom of religion. It then considers the Court's use of several different historical sources including statements, debates, and changes to the text during the drafting process, rejected provisions, understanding during the ratification process, the absence of discussion and the Federalist Papers.Less
This chapter considers the various pre-constitutional sources that the Court relies on to discover the original understanding as well as the uses that it has made of material relating to the drafting and ratification process. First, it discusses the Court's use of English and common law history, the influence of William Blackstone, colonial history, the Declaration of Independence, the Articles of Confederation, and the Virginia experience with freedom of religion. It then considers the Court's use of several different historical sources including statements, debates, and changes to the text during the drafting process, rejected provisions, understanding during the ratification process, the absence of discussion and the Federalist Papers.
JAMES E. PFANDER
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780195340334
- eISBN:
- 9780199867233
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195340334.003.002
- Subject:
- Law, Constitutional and Administrative Law
This chapter concentrates on the meaning of supremacy and its close association in the minds of the Framers of the Constitution with the supervisory powers of King's Bench in England. These ...
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This chapter concentrates on the meaning of supremacy and its close association in the minds of the Framers of the Constitution with the supervisory powers of King's Bench in England. These supervisory powers were what William Blackstone had in mind when he referred to the high and transcendent power of King's Bench to issue the common-law writs of mandamus, habeas corpus, and prohibition, among others. Differing from appellate jurisdiction, these supervisory writs enabled the court to direct the progress of litigation in inferior tribunals, to correct errors when necessary, and to confine the lower courts within the bounds of their proper jurisdiction. The chapter shows that these supervisory powers were incorporated into the remedial arsenal of supreme courts in America and were understood to form a part of the judicial toolkit of the “one Supreme Court”identified in Article III of the Constitution.Less
This chapter concentrates on the meaning of supremacy and its close association in the minds of the Framers of the Constitution with the supervisory powers of King's Bench in England. These supervisory powers were what William Blackstone had in mind when he referred to the high and transcendent power of King's Bench to issue the common-law writs of mandamus, habeas corpus, and prohibition, among others. Differing from appellate jurisdiction, these supervisory writs enabled the court to direct the progress of litigation in inferior tribunals, to correct errors when necessary, and to confine the lower courts within the bounds of their proper jurisdiction. The chapter shows that these supervisory powers were incorporated into the remedial arsenal of supreme courts in America and were understood to form a part of the judicial toolkit of the “one Supreme Court”identified in Article III of the Constitution.
Don E. Fehrenbacher and Ward M. McAfee
- Published in print:
- 2002
- Published Online:
- October 2011
- ISBN:
- 9780195158052
- eISBN:
- 9780199849475
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195158052.003.0007
- Subject:
- History, American History: 19th Century
Runaways were a common feature of late colonial society, and from Virginia northward, especially, they included white persons as well as black. George Washington, who had a relatively small number of ...
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Runaways were a common feature of late colonial society, and from Virginia northward, especially, they included white persons as well as black. George Washington, who had a relatively small number of white servants on his plantation, was more often bothered by the flight of a slave or truancy of a slave. Colonial laws dealing with runaway servants and slaves dated back to the 17th century. Some responsibility for enforcement rested with sheriffs, magistrates, and other public officers, but more often than not, recovery depended largely on the initiative of the owner. Men like Washington, acting for themselves or through intermediaries, and usually took their own steps to locate a fugitive and compel his return to servitude. In doing so, they were presumably exercising a common-law right of “recaption”, which, as defined by Sir William Blackstone, permitted private action to recover property wrongfully taken.Less
Runaways were a common feature of late colonial society, and from Virginia northward, especially, they included white persons as well as black. George Washington, who had a relatively small number of white servants on his plantation, was more often bothered by the flight of a slave or truancy of a slave. Colonial laws dealing with runaway servants and slaves dated back to the 17th century. Some responsibility for enforcement rested with sheriffs, magistrates, and other public officers, but more often than not, recovery depended largely on the initiative of the owner. Men like Washington, acting for themselves or through intermediaries, and usually took their own steps to locate a fugitive and compel his return to servitude. In doing so, they were presumably exercising a common-law right of “recaption”, which, as defined by Sir William Blackstone, permitted private action to recover property wrongfully taken.
F. Rosen
- Published in print:
- 1992
- Published Online:
- October 2011
- ISBN:
- 9780198200789
- eISBN:
- 9780191674778
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198200789.003.0003
- Subject:
- History, British and Irish Modern History, History of Ideas
In the Fragment on Government, Jeremy Bentham posed the general question of how free and despotic governments differed. Bentham's list is important for this chapter's purposes in two respects. ...
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In the Fragment on Government, Jeremy Bentham posed the general question of how free and despotic governments differed. Bentham's list is important for this chapter's purposes in two respects. Firstly, in the last two ‘circumstances’, liberty of the press and public association, he clearly linked security with liberty and used this formulation to define an extensive framework for constitutional liberty. Secondly, in concentrating on general ‘circumstances’, Bentham established that he was not looking at particular institutions, such as the British constitution, as the source of liberty but more broadly to general principles. To understand the development of Bentham's idea of constitutional liberty, however, it will be best to took at his critique of William Blackstone's own account of the British constitution where current ideas of constitutional liberty might be found.Less
In the Fragment on Government, Jeremy Bentham posed the general question of how free and despotic governments differed. Bentham's list is important for this chapter's purposes in two respects. Firstly, in the last two ‘circumstances’, liberty of the press and public association, he clearly linked security with liberty and used this formulation to define an extensive framework for constitutional liberty. Secondly, in concentrating on general ‘circumstances’, Bentham established that he was not looking at particular institutions, such as the British constitution, as the source of liberty but more broadly to general principles. To understand the development of Bentham's idea of constitutional liberty, however, it will be best to took at his critique of William Blackstone's own account of the British constitution where current ideas of constitutional liberty might be found.
J. W. F. Allison
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298656
- eISBN:
- 9780191710735
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298656.003.0007
- Subject:
- Law, Comparative Law, Legal History
Contradictory institutional demands for both judicial independence and expertise in administrative disputes are related to theoretical and everyday requirements of objectivity and subjectivity. This ...
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Contradictory institutional demands for both judicial independence and expertise in administrative disputes are related to theoretical and everyday requirements of objectivity and subjectivity. This chapter describes the development of the radical French separation of powers — in reaction to the roles of the pre-Revolutionary Parlements and in response to the theories of Montesquieu and Rousseau — and the consequent assumption of judicial functions by the Consei d'Etat within the French administration. It shows how the judicialization of their exercise enabled the Conseil d'Etat broadly to satisfy those demands, and thus help entrench the French distinction between public- and private-law courts. The chapter contrasts the English emphasis on judicial independence, identified with the abolition of prerogative courts and the revolutionary settlement, and confirmed by Blackstone amongst others. The 20th-century Hewart—Robson debate on administrative tribunals, their subordination to the supervisory jurisdiction of the ordinary courts after the Donoughmore Inquiry, and the relatively limited administrative expertise of judges on the Crown Office List, it explains as indicative of an enduring problem — securing both judicial independence and adequate judicial expertise — for an institutional English distinction between public- and private-law courts.Less
Contradictory institutional demands for both judicial independence and expertise in administrative disputes are related to theoretical and everyday requirements of objectivity and subjectivity. This chapter describes the development of the radical French separation of powers — in reaction to the roles of the pre-Revolutionary Parlements and in response to the theories of Montesquieu and Rousseau — and the consequent assumption of judicial functions by the Consei d'Etat within the French administration. It shows how the judicialization of their exercise enabled the Conseil d'Etat broadly to satisfy those demands, and thus help entrench the French distinction between public- and private-law courts. The chapter contrasts the English emphasis on judicial independence, identified with the abolition of prerogative courts and the revolutionary settlement, and confirmed by Blackstone amongst others. The 20th-century Hewart—Robson debate on administrative tribunals, their subordination to the supervisory jurisdiction of the ordinary courts after the Donoughmore Inquiry, and the relatively limited administrative expertise of judges on the Crown Office List, it explains as indicative of an enduring problem — securing both judicial independence and adequate judicial expertise — for an institutional English distinction between public- and private-law courts.
JOSHUA GETZLER
- Published in print:
- 2006
- Published Online:
- January 2010
- ISBN:
- 9780199207602
- eISBN:
- 9780191715327
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199207602.003.0005
- Subject:
- Law, Environmental and Energy Law
In the early 17th century, Sir Edward Coke (1552-1634) in his Institutes and Reports gives some treatment of incorporeal rights and prescriptions, especially in relation to commons and fisheries; but ...
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In the early 17th century, Sir Edward Coke (1552-1634) in his Institutes and Reports gives some treatment of incorporeal rights and prescriptions, especially in relation to commons and fisheries; but Coke’s main concern is with tenures and estates: with title to land, not use of land. By contrast, Sir Matthew Hale (1609-76) and Sir William Blackstone (1723-80) provided detailed and systematic treatments of the rights of enjoyment incidental to land ownership. A justifiable claim can be made that these writers, Blackstone in particular, laid the foundations for the 19th-century law of land and water use. Here Blackstone, like Coke, was cited by the judges in leading cases as a direct authority in the search for right answers. This chapter reconstructs these modern institutionalists’ schemes of property and water law, which in turn reveals much of their legal technique and ideology.Less
In the early 17th century, Sir Edward Coke (1552-1634) in his Institutes and Reports gives some treatment of incorporeal rights and prescriptions, especially in relation to commons and fisheries; but Coke’s main concern is with tenures and estates: with title to land, not use of land. By contrast, Sir Matthew Hale (1609-76) and Sir William Blackstone (1723-80) provided detailed and systematic treatments of the rights of enjoyment incidental to land ownership. A justifiable claim can be made that these writers, Blackstone in particular, laid the foundations for the 19th-century law of land and water use. Here Blackstone, like Coke, was cited by the judges in leading cases as a direct authority in the search for right answers. This chapter reconstructs these modern institutionalists’ schemes of property and water law, which in turn reveals much of their legal technique and ideology.
George C. Thomas III and Richard A. Leo
- Published in print:
- 2012
- Published Online:
- May 2012
- ISBN:
- 9780195338935
- eISBN:
- 9780199933303
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195338935.003.0003
- Subject:
- Law, Criminal Law and Criminology
English criminal cases in the late seventeenth century began to show hints of concern about out-of-court confessions produced by fear or promises. Hale’s Pleas of the Crown, published in 1736, was ...
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English criminal cases in the late seventeenth century began to show hints of concern about out-of-court confessions produced by fear or promises. Hale’s Pleas of the Crown, published in 1736, was the first treatise to mention this concern, but the most vivid expression appears in Hawkins’s 1787 treatise: Even the slightest “flattery of hope” or “impressions of fear” made a confession inadmissible. This exquisite concern about pressure on the accused to confess arose as magistrates, led by John Fielding, sought to combat crime by conducting examinations in much more forceful ways. The Hawkins “no pressure” principle dominated English interrogation law for a century. There were countercurrents during the century of dominance, however, including an 1848 act of Parliament that required magistrates to warn the accused that he need not answer questions but provided that any statements made after the warning would be introduced in court “without further Proof thereof.”Less
English criminal cases in the late seventeenth century began to show hints of concern about out-of-court confessions produced by fear or promises. Hale’s Pleas of the Crown, published in 1736, was the first treatise to mention this concern, but the most vivid expression appears in Hawkins’s 1787 treatise: Even the slightest “flattery of hope” or “impressions of fear” made a confession inadmissible. This exquisite concern about pressure on the accused to confess arose as magistrates, led by John Fielding, sought to combat crime by conducting examinations in much more forceful ways. The Hawkins “no pressure” principle dominated English interrogation law for a century. There were countercurrents during the century of dominance, however, including an 1848 act of Parliament that required magistrates to warn the accused that he need not answer questions but provided that any statements made after the warning would be introduced in court “without further Proof thereof.”
DAVID CLARK and GERARD McCOY
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198265849
- eISBN:
- 9780191715280
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198265849.003.0002
- Subject:
- Law, Human Rights and Immigration, Philosophy of Law
If laws authorising detentions permit what would otherwise be arbitrary detentions, then the writ of habeas corpus is rendered ineffective. In some legal systems these powers are very wide (for ...
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If laws authorising detentions permit what would otherwise be arbitrary detentions, then the writ of habeas corpus is rendered ineffective. In some legal systems these powers are very wide (for example, laws on martial law or emergencies) and these laws authorise what would otherwise be arbitrary detentions. Once such laws are in place the writ may be available but an application for habeas corpus is not likely to succeed unless the authorities make some legal mistake in executing the laws. It becomes important therefore to consider the character of the laws and in particular whether those laws provide sweeping or restricted powers of detention by the Executive. This chapter looks at the myths and realities about habeas corpus, the views of Sir Edward Coke and William Blackstone, claims made in England about the scope of the writ, and experience of British colonies in North America with the writ. Oppressive laws in developed Commonwealth States are discussed, focusing on the case of Australian aborigines, along with immigration laws and prevention of terrorism in England.Less
If laws authorising detentions permit what would otherwise be arbitrary detentions, then the writ of habeas corpus is rendered ineffective. In some legal systems these powers are very wide (for example, laws on martial law or emergencies) and these laws authorise what would otherwise be arbitrary detentions. Once such laws are in place the writ may be available but an application for habeas corpus is not likely to succeed unless the authorities make some legal mistake in executing the laws. It becomes important therefore to consider the character of the laws and in particular whether those laws provide sweeping or restricted powers of detention by the Executive. This chapter looks at the myths and realities about habeas corpus, the views of Sir Edward Coke and William Blackstone, claims made in England about the scope of the writ, and experience of British colonies in North America with the writ. Oppressive laws in developed Commonwealth States are discussed, focusing on the case of Australian aborigines, along with immigration laws and prevention of terrorism in England.
A. W. BRAIN SIMPSON
- Published in print:
- 2004
- Published Online:
- January 2010
- ISBN:
- 9780199267897
- eISBN:
- 9780191714115
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199267897.003.0001
- Subject:
- Law, Human Rights and Immigration, EU Law
This chapter emphasizes the need for a special explanation as to why Britain, whose legal culture was traditionally hostile to the adoption of formal bills of rights, came to play a major role in the ...
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This chapter emphasizes the need for a special explanation as to why Britain, whose legal culture was traditionally hostile to the adoption of formal bills of rights, came to play a major role in the negotiations. It examines the theory of rights protection to be found in Blackstone and earlier writers, and analyses the influence of Dicey's writings on common law culture. It concludes by considering whether Britain was indeed a paradise of rights protection, as regularly claimed by common lawyers, even though it had no entrenched bill of rights.Less
This chapter emphasizes the need for a special explanation as to why Britain, whose legal culture was traditionally hostile to the adoption of formal bills of rights, came to play a major role in the negotiations. It examines the theory of rights protection to be found in Blackstone and earlier writers, and analyses the influence of Dicey's writings on common law culture. It concludes by considering whether Britain was indeed a paradise of rights protection, as regularly claimed by common lawyers, even though it had no entrenched bill of rights.
John Finnis
- Published in print:
- 2011
- Published Online:
- September 2011
- ISBN:
- 9780199580088
- eISBN:
- 9780191729409
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199580088.003.0009
- Subject:
- Law, Philosophy of Law
The introductory discourse in Blackstone's Commentaries on the Laws of England (1765), and its definition of law, has usually been read as focused on the thesis that unjust laws are not laws. But ...
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The introductory discourse in Blackstone's Commentaries on the Laws of England (1765), and its definition of law, has usually been read as focused on the thesis that unjust laws are not laws. But that was not Blackstone's point, and his theoretical intentions, as manifested in the highly deliberated architecture of the Commentaries (traced in historical origin and structural and linguistic detail in the chapter), were much more interesting and complex. Like the main body of the natural law tradition, his interest lay in the various forms of derivation of positive from natural law (moral principle). His works' fruits in William Jones 1781 Essay on Bailments are methodologically superior to Bentham's work from 1776 onwards.Less
The introductory discourse in Blackstone's Commentaries on the Laws of England (1765), and its definition of law, has usually been read as focused on the thesis that unjust laws are not laws. But that was not Blackstone's point, and his theoretical intentions, as manifested in the highly deliberated architecture of the Commentaries (traced in historical origin and structural and linguistic detail in the chapter), were much more interesting and complex. Like the main body of the natural law tradition, his interest lay in the various forms of derivation of positive from natural law (moral principle). His works' fruits in William Jones 1781 Essay on Bailments are methodologically superior to Bentham's work from 1776 onwards.
Michael Tugendhat
- Published in print:
- 2016
- Published Online:
- February 2017
- ISBN:
- 9780198790990
- eISBN:
- 9780191833403
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198790990.001.0001
- Subject:
- Law, Human Rights and Immigration, Constitutional and Administrative Law
This short history of human rights for lawyers, and others interested in history and politics, shows that they are British rights, not because Britons invented these ‘rights of mankind’, but because ...
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This short history of human rights for lawyers, and others interested in history and politics, shows that they are British rights, not because Britons invented these ‘rights of mankind’, but because at home and in America, they were more successful than other peoples in the struggle for liberty. It explains the reasons given to justify the recognition of these rights, citing mainly from Blackstone’s Commentaries of the Laws of England, but also from Paine, Burke, Hume, Milton, Coke, St German, More, Fortescue, and others, together with American and French sources. Each of the rights set out in the Virginia Declaration of Rights 1776, the Déclaration des Droits de l’Homme et du Citoyen de 1789 (Declaration of Human and Civic Rights of 26 August 1789, or Declaration of the Rights of Man and of the Citizen), and American Bill of Rights of 1791, is compared to the corresponding rights that were then (and in most cases had long been) recognized in England. The emphasis is on the common law. It shows the influence of human rights on the British revolutions of 1642 and 1688, the American and French Revolutions in 1776 and 1789, the Universal Declaration of Human Rights 1948, the European Convention on Human Rights 1950, and the Human Rights Act 1998. The book shows how these rights have been put to different uses by judges, Parliament, governments, and, most importantly, by peoples. There is a brief discussion of the effect of the Human Rights Act on English law.Less
This short history of human rights for lawyers, and others interested in history and politics, shows that they are British rights, not because Britons invented these ‘rights of mankind’, but because at home and in America, they were more successful than other peoples in the struggle for liberty. It explains the reasons given to justify the recognition of these rights, citing mainly from Blackstone’s Commentaries of the Laws of England, but also from Paine, Burke, Hume, Milton, Coke, St German, More, Fortescue, and others, together with American and French sources. Each of the rights set out in the Virginia Declaration of Rights 1776, the Déclaration des Droits de l’Homme et du Citoyen de 1789 (Declaration of Human and Civic Rights of 26 August 1789, or Declaration of the Rights of Man and of the Citizen), and American Bill of Rights of 1791, is compared to the corresponding rights that were then (and in most cases had long been) recognized in England. The emphasis is on the common law. It shows the influence of human rights on the British revolutions of 1642 and 1688, the American and French Revolutions in 1776 and 1789, the Universal Declaration of Human Rights 1948, the European Convention on Human Rights 1950, and the Human Rights Act 1998. The book shows how these rights have been put to different uses by judges, Parliament, governments, and, most importantly, by peoples. There is a brief discussion of the effect of the Human Rights Act on English law.
T. R. S. Allan
- Published in print:
- 1994
- Published Online:
- March 2012
- ISBN:
- 9780198259916
- eISBN:
- 9780191682025
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198259916.003.0001
- Subject:
- Law, Constitutional and Administrative Law
Dicey's dogmatic distinction between law and convention, for all its continuing influence on public lawyers, is only another manifestation of the positivist outlook responsible for the rule of ...
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Dicey's dogmatic distinction between law and convention, for all its continuing influence on public lawyers, is only another manifestation of the positivist outlook responsible for the rule of parliamentary omnipotence. This book attempts to defend a different Dicey — the constitutional theorist struggling to escape the shackles of the Hobbesian authoritarianism he learned from Lord Atkin. It holds that Dicey's doctrine of law seems a better starting point than parliamentary sovereignty for the analysis in this book. It seeks to understand constitutional doctrine as a reflection of the underlying political ideal of the rule of law. In trying to explain the meaning of the rule of law as a constitutional principle, and explore its implications for British public law, this book mixes public law and legal and political theory.Less
Dicey's dogmatic distinction between law and convention, for all its continuing influence on public lawyers, is only another manifestation of the positivist outlook responsible for the rule of parliamentary omnipotence. This book attempts to defend a different Dicey — the constitutional theorist struggling to escape the shackles of the Hobbesian authoritarianism he learned from Lord Atkin. It holds that Dicey's doctrine of law seems a better starting point than parliamentary sovereignty for the analysis in this book. It seeks to understand constitutional doctrine as a reflection of the underlying political ideal of the rule of law. In trying to explain the meaning of the rule of law as a constitutional principle, and explore its implications for British public law, this book mixes public law and legal and political theory.
Dan Edelstein
- Published in print:
- 2018
- Published Online:
- May 2019
- ISBN:
- 9780226588988
- eISBN:
- 9780226589039
- Item type:
- chapter
- Publisher:
- University of Chicago Press
- DOI:
- 10.7208/chicago/9780226589039.003.0006
- Subject:
- History, History of Ideas
The preservation regime of rights first gained political recognition in the young American Republic. But the preservation regime of natural rights had long been present in the American colonies, and ...
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The preservation regime of rights first gained political recognition in the young American Republic. But the preservation regime of natural rights had long been present in the American colonies, and more specifically New England. Puritans had opposed a variety of colonial rules in the name of natural rights. They also identified these rights with the “rights of Englishmen.” In so doing, they fashioned a political discourse that I define as natural constitutionalism. Thanks to natural law theory, the colonists could affirm the right to self-government. But thanks to English common law, they affirmed their juridical rights in political society. The greatest defender of natural constitutionalism was William Blackstone. In his Commentaries, he outlined a political theory that fully merged natural rights theory and English common law. The success of the Commentaries would ensure the diffusion of this theory throughout the American colonies. Once independence had been declared, Americans sought primarily to retain the benefits of the English justice system. This objective is particularly evident in the State declarations of rights passed at the time of independence. Most of the rights contained here, as in the later Bill of Rights, are related to criminal procedure, and stem from English common law.Less
The preservation regime of rights first gained political recognition in the young American Republic. But the preservation regime of natural rights had long been present in the American colonies, and more specifically New England. Puritans had opposed a variety of colonial rules in the name of natural rights. They also identified these rights with the “rights of Englishmen.” In so doing, they fashioned a political discourse that I define as natural constitutionalism. Thanks to natural law theory, the colonists could affirm the right to self-government. But thanks to English common law, they affirmed their juridical rights in political society. The greatest defender of natural constitutionalism was William Blackstone. In his Commentaries, he outlined a political theory that fully merged natural rights theory and English common law. The success of the Commentaries would ensure the diffusion of this theory throughout the American colonies. Once independence had been declared, Americans sought primarily to retain the benefits of the English justice system. This objective is particularly evident in the State declarations of rights passed at the time of independence. Most of the rights contained here, as in the later Bill of Rights, are related to criminal procedure, and stem from English common law.
James Q. Whitman
- Published in print:
- 2005
- Published Online:
- March 2012
- ISBN:
- 9780195182606
- eISBN:
- 9780199850266
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195182606.003.0003
- Subject:
- Law, Criminal Law and Criminology
This chapter refers to Blackstone's Commentaries to further examine Blackstone's interpretation of the place that the respect for persons holds in the ...
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This chapter refers to Blackstone's Commentaries to further examine Blackstone's interpretation of the place that the respect for persons holds in the law. Blackstone believed that common law rejected the notion of “respect of persons”—the Christian term used in the New Testament to depict how Christ refused to respect the differences in social classes—since the common law did not account for social rank and position. With this, common law is described not merely as Christian, but as something enlightening. The chapter explains that America's criminal justice system rejects this respect of persons because it aims to treat people equally, and that this approach veers away from treating offenders with respect.Less
This chapter refers to Blackstone's Commentaries to further examine Blackstone's interpretation of the place that the respect for persons holds in the law. Blackstone believed that common law rejected the notion of “respect of persons”—the Christian term used in the New Testament to depict how Christ refused to respect the differences in social classes—since the common law did not account for social rank and position. With this, common law is described not merely as Christian, but as something enlightening. The chapter explains that America's criminal justice system rejects this respect of persons because it aims to treat people equally, and that this approach veers away from treating offenders with respect.
G. M. Hamburg
- Published in print:
- 2016
- Published Online:
- January 2017
- ISBN:
- 9780300113136
- eISBN:
- 9780300224191
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300113136.003.0013
- Subject:
- History, Russian and Former Soviet Union History
This chapter examines the place of law in Russian Enlightenment thought by focusing on the views of Ivan Andreevich Tret’iakov (1735–1776) and Semen Efimovich Desnitskii. Outside of the government ...
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This chapter examines the place of law in Russian Enlightenment thought by focusing on the views of Ivan Andreevich Tret’iakov (1735–1776) and Semen Efimovich Desnitskii. Outside of the government and the Church, the most important institutional venue for the propagation of Enlightenment ideas in Russia was probably Moscow University, where Tret’iakov and Desnitskii taught courses on Roman law, Russian law, and comparative jurisprudence. Tret’iakov and Desnitskii studied at Glasgow University from 1761 to 1767, listening to lectures from leading figures of the Scottish intellectual scene, including Adam Smith. This chapter considers the influence of William Blackstone, John Millar, and Adam Smith on Desnitskii. In particular, it discusses the ways that Smith’s The Theory of Moral Sentiments, especially its exploration of moral philosophy and social psychology, impressed Desnitskii. It also looks at Desnitskii’s “Proposal on the Establishment of Legislative, Judicial, and Executive Authority in the Russian Empire” and “A Lecture on a Direct and Most Sensible Method of Studying Jurisprudence.”Less
This chapter examines the place of law in Russian Enlightenment thought by focusing on the views of Ivan Andreevich Tret’iakov (1735–1776) and Semen Efimovich Desnitskii. Outside of the government and the Church, the most important institutional venue for the propagation of Enlightenment ideas in Russia was probably Moscow University, where Tret’iakov and Desnitskii taught courses on Roman law, Russian law, and comparative jurisprudence. Tret’iakov and Desnitskii studied at Glasgow University from 1761 to 1767, listening to lectures from leading figures of the Scottish intellectual scene, including Adam Smith. This chapter considers the influence of William Blackstone, John Millar, and Adam Smith on Desnitskii. In particular, it discusses the ways that Smith’s The Theory of Moral Sentiments, especially its exploration of moral philosophy and social psychology, impressed Desnitskii. It also looks at Desnitskii’s “Proposal on the Establishment of Legislative, Judicial, and Executive Authority in the Russian Empire” and “A Lecture on a Direct and Most Sensible Method of Studying Jurisprudence.”
