The “Discovery” of Law by English and American Jurists of the Seventeenth, Eighteenth, and Nineteenth Centuries: Third-Party Beneficiary Contracts as a Test Case

Abstract

Two generations of legal historians have debated the question of the reception and evolution of common law and equity in England and America by jurists of the seventeenth, eighteenth, and nineteenth centuries. Briefly, one school argues that jurists of these years employed a “doctrinal method” to discover, through deduction, the principles of the law in a particular case. Such a jurist, in the words of the late Lon Fuller, “does not consider that it is the primary function of judges or legal scholars to weigh the practical consequences of deciding a particular case one way or the other. Rather [he] regards them as having a purely deductive function. The starting point for the deciding of any case is to be found in certain premises dictated by the nature of law and legal relationships. Each relationship or transaction has its ‘essential nature.’”