Historical Jurisprudence Research Articles

The Origins of Historical Jurisprudence: Coke, Selden, Hale

The Origins of Historical Jurisprudence: Coke, Selden, Hale

Genealogy and Jurisprudence: Nietzsche, Nihilism, and the Social Scientification of Law

In Twilight of the Idols, Nietzsche presents a history of metaphysics that can also be read as a history of jurisprudence. Nietzsche shows how—via Platonism, Christendom, Kantianism, and utilitarianism—the “real” or “true” world of ideals gives way to an “apparent” phenomenal world that is itself ultimately brought into question. This article shows how 20th-century legal thought, broadly construed, also moves away from “ideals” of law toward an understanding of law as observable social phenomena. It suggests that the move to the “apparent” world in legal thought raises questions similar to those raised by Nietzsche's work: Does sociological law point to a nihilistic destruction of the legal tradition or to a joyous possibility of overcoming that tradition?

The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal

Notes on contributors Foreword Sir John Lyons Introduction Alan Diamond 1. The Victorian values of Sir Henry Maine George Feaver Part I. Maine and the Idea of Progress: 2. Henry Maine and mid-Victorian ideas of progress John W. Burrow 3. Maine, progress and theory Raymond Cocks 4. Maine and the theory of progress Krishan Kumar 5. Democracy and excitement: Maine's political pessimism Stefan Collini Part II. Maine and the Social Sciences: 6. The rise and fall of Maine's patriarchal society Adam Kuper 7. Some contributions of Maine to history and anthropology Alan D. J. Macfarlane 8. Henry Sumner Maine in the tradition of the analysis of society Edward Shils 9. Maine as an ancestor of the social sciences J. D. Y. Peel 10. Ancient Law and modern fieldwork Ray Abrahams Part III. Maine on Law, Legal Change and Legal Education: 11. Maine and legal education Peter G. Stein 12. Maine and legal education: a comment William Twining 13. A wake (or awakening?) for historical jurisprudence Calvin Woodard 14. Further thoughts on Maine's historical jurisprudence David E. C. Yale 15. Fictions, equity and legislation: Maine's three agencies of legal change Alan Diamond 16. Law and language: a metaphor in Maine, a model for his successors? Bernard S. Jackson 17. Linguistics and law: the legacy of Sir Henry Maine John Lyons Part IV. Maine and India: 18. The influence of Sir Henry Maine on agrarian policy in India Clive Dewey 19. India and Henry Maine Gordon Johnson 20. Maine and change in nineteenth-century India C. A. Bayly Appendix: the conference programme Bibliography Index.

The challenge of artificial intelligence: can Roman law help us discover whether law is a system of rules?

It may or may not be possible to develop an Artificial Intelligence model of legal reasoning that accurately reflects the processes of the legal mind, but one positive result that could well emerge from all the research into such modelling is a fundamental reassessment of legal theory. The paradigm that legal reasoning is essentially a rule based activity may well have to be discarded in favour of an epistemological model that is very much more complex, in the systems sense of this term, than the hierarchical structure traditionally associated with jurists since the Enlightenment (if not since the Byzantines) and represented in one of its most perfect theoretical forms today in Kelsen's model. It is the purpose of this paper to examine, if only briefly, this challenge to conventional legal theory (Part I) and, using systems theory, historical jurisprudence and Justinian's Digest (Part II), to suggest an alternative epistemological model (Part III).

Political Economy—In Breadth or in Depth?

Economists today are displaying an enviable level of activity. They are unstinting with their advice and recommendations and are participating broadly in the formulation of programmatic documents for perestroika. Holders of academic degrees are either involved in all levels of economic management or else occupy positions nearby as consultants. Our colleagues do not by any means confine themselves to the production sphere, but are confidently joining in the discussion of problems of technology, ecology, social and consumer services, culture, and sociopolitical organization. They are speaking out on issues in historical science and jurisprudence. They are trying their hand at literary criticism.

Savigny and His Anglo-American Disciples

Friedrich Carl von Savigny, nobleman, law reformer, champion of the revived German professoriate, and founder of the Historical School of jurisprudence, not only helped to revolutionize the study of law and legal institutions in Germany and in other civil law countries, but also exercised a profound influence on many of the most creative jurists and legal scholars in England and the United States.' Nevertheless, tracing the influence of an individual is always a difficult task. It is especially difficult as regards Savigny and the approach to law and legal sources propounded by the Historical School. This difficulty arises, in part, because Savigny was not alone in adopting this approach. Hugo, for instance, espoused quite similar ideas in Germany2; George Long echoed many of these concepts in England during the 1850s,3 and, of course, Sir Henry Sumner Maine also espoused many of these same concepts central to historical jurisprudence in England in the 1860s and 1870s.4 Thus, when one looks at the doctrinal writings of British and American jurists and legal scholars in the period before 1875 it is often impossible to say with any certainty that a particular idea which sounds very much the sort of thing that might, indeed, have been derived from Savi-

Historical jurisprudence

While it is no doubt possible to subsume many kinds of inquiry under the head of historical jurisprudence one should certainly distinguish between two rather different kinds. First there is the kind that takes a particular legal notion or idea as it becomes crystallised at some point in a country’s legal history and traces its subsequent history in legal thought, investigating its diffusion and influence and assessing its continuing utility. Such an inquiry is concerned only with the facts in the sense of the ascertainment of what has actually happened. It is in no degree speculative; nor does it seek to investigate the relationship between social conditions and legal notions or rely upon any particular theory of social evolution.

Grotius' Doctrine of the Social Contract

In George H. Sabine's great work, A History of Political Thought , he makes the following overall judgment on Grotius’ writing: “Grotius' importance in the history of jurisprudence rests not upon a theory of the state or upon anything that he had to say about constitutional law, but upon his conception of a law regulating the relations between the sovereign states.”

A Summary of the Main Achievements of the Spanish Jurist-Theologians in the History of Jurisprudence

A Summary of the Main Achievements of the Spanish Jurist-Theologians in the History of Jurisprudence

The Place of Hume in the History of Jurisprudence

The Place of Hume in the History of Jurisprudence

Magister Gratian and the Problem of ‘Regnum’ and ‘Sacerdotium’

Shortly after its completion and circulation, the Decretum Gratiani became the foundation for a new canonical jurisprudence. Ironically, study of the work's history has suffered rather than benefited from its prominence in the history of law. Scholars have tried to reconstruct the text of the Decretum as it originally left the workroom of the Magister, but they have almost never tried to discover why — apart from scholarly motives — he undertook the enterprise. Instead, they have concentrated attention on his doctrine, or on the doctrine of the canons he cited, because their primary concern is to find the sources of later canonical theories. When they have searched for the sources of Gratian's own ideas, they have looked to earlier collections of the canons on which he relied. Gratian scholarship has thus been part of the history of ideas; concern for the Magister's place in the history of jurisprudence has kept historians from considering his place in the history of his times.

Maine's Ancient Law in the Light of Primitive Societies

MODERN student of primitive law has written that Henry Maine's Ancient Law still remains after eight decades the preeminent work on the origin and nature of primitive legal 1 Without stopping to do more than wonder why anthropologists who have been studying primitive peoples failed in eighty years to produce a better work on the subject, one may review Maine's book in the terms in which it is praised by Hoebel: as the pre-eminent work on the origin and nature of primitive legal institutions. This paper will look at the book only as it gives understanding of the law and custom of primitive societies.2 No consideration will be given to Maine's important contributions to the history of Roman and European law and to method and viewpoint in historical jurisprudence. Hence no attention will be directed to those parts of the book which deal with such subjects as the effects of legal fiction, equity and legislation in making western law flexible to meet changing circumstances, the steps by which the Romans developed a comprehensive idea of contract into separate legal conceptions appropriate to a more complex society, the historical development of the conception of natural law out of the Roman law of nations and other elements, the nature of and transformations in the Roman principle of patriarchal authority, and the history of testamentary disposition. These are all matters of the history of the law of our Graeco-Roman-European tradition. They are the principal subjects of Maine's book, and of Sir Frederick Pollock's notes. This essay will consider only so much of Maine's treatise as bears upon our understanding of primitive law and of primitive society. Although occasional reference will be made to Dissertations on Early Law and Custom,3 which Maine published twenty-two years after the Ancient Law appeared, attention will center on the earlier and greater book: it is Ancient Law that Hoebel rightly regards as pre-eminent. If the admiration accorded the book by the writer of this essay appears greater than that of others who have discussed it in recent years,4 it should be

Distinction of "Jurisprudence History" from "History of Laws"

Distinction of "Jurisprudence History" from "History of Laws"

Political Developments and Tendencies

It has seemed fitting, at this second meeting of the Association in New Orleans, where it was organized a quarter of a century ago, to give some attention to significant happenings during this period, in the affairs of the Association, in the field of political action, and in the analysis and interpretation of political phenomena. At least two former presidents have discussed some phases of these topics; but there is perhaps room for a difference of approach and emphasis.When this Association was organized, the systematic study and teaching of political problems was but slightly developed. Only a few courses in public law and government were given in some of the larger universities. Of the twenty-five persons who were present at the organization of the Association, and the 214 who became members during the first year, a large proportion were primarily interested in history, economics, and other social studies with political bearings, rather than in political problems themselves.In the constitution of the Association, its object was stated to be: “The encouragement of the scientific study of politics, public law, administration, and diplomacy.” In the first presidential address, President Goodnow outlined the field of work of the Association as including political theory, constitutional and administrative law, comparative legislation, historical and comparative jurisprudence, and political parties. He also noted the opportunity of the Association to secure the active coöperation of teachers of these subjects, and to bring together the student and those actively engaged in political life. A further indication of the plans of those who established the Association may be seen in the appointment of a series of standing committees on different branches of the field outlined, and the reorganization of these a year later into sections.

Political Developments and Tendencies

It has seemed fitting, at this second meeting of the Association in New Orleans, where it was organized a quarter of a century ago, to give some attention to significant happenings during this period, in the affairs of the Association, in the field of political action, and in the analysis and interpretation of political phenomena. At least two former presidents have discussed some phases of these topics; but there is perhaps room for a difference of approach and emphasis.When this Association was organized, the systematic study and teaching of political problems was but slightly developed. Only a few courses in public law and government were given in some of the larger universities. Of the twenty-five persons who were present at the organization of the Association, and the 214 who became members during the first year, a large proportion were primarily interested in history, economics, and other social studies with political bearings, rather than in political problems themselves.In the constitution of the Association, its object was stated to be: “The encouragement of the scientific study of politics, public law, administration, and diplomacy.” In the first presidential address, President Goodnow outlined the field of work of the Association as including political theory, constitutional and administrative law, comparative legislation, historical and comparative jurisprudence, and political parties. He also noted the opportunity of the Association to secure the active coöperation of teachers of these subjects, and to bring together the student and those actively engaged in political life. A further indication of the plans of those who established the Association may be seen in the appointment of a series of standing committees on different branches of the field outlined, and the reorganization of these a year later into sections.

Vinogradoff, Sir Paul. Outlines of Historical Jurisprudence. Volume Two; The Jurisprudence of the Greek City. Pp. x, 316. Price, $7.00. New York: Oxford University Press

Vinogradoff, Sir Paul. Outlines of Historical Jurisprudence. Volume Two; The Jurisprudence of the Greek City. Pp. x, 316. Price, $7.00. New York: Oxford University Press

Outlines of Historical Jurisprudence

Outlines of Historical Jurisprudence

Grotius in the Science of Law

It has been customary to take Grotius's book for the starting point of one of the best marked eras in the history of jurisprudence. Any account of the development of theories of justice is likely to begin the modern history of the subject with Grotius, and to put as a classical epoch a period designated as “from Grotius to Kant.” Any account of theories of law is likely to set off a period from the revived study of Roman law in the Italian universities of the twelfth century to Grotius, and another from Grotius to the breaking up of the eighteenth century law-of-nature school. In almost all accounts of the history of the science of law, Grotius stands as marking a turning point.

Grotius and the Study of Law

In more than one respect the part played by Grotius (1583–1645) in the history of jurisprudence presents perplexing features. His chief glory lies in the department of law; yet he was more of a philologist and of a theologian than of a jurist. He is often called the father of international law; yet his principal book, the famous book of 1625, was not a treatise devoted to international law. His book, by reason of many of its qualities, looks obsolete: written in Latin, full of quotations and authorities unknown to modern readers, silent about medieval and modern history, it is still a young and living book, younger even than it was two centuries ago.

Outlines of Historical Jurisprudence. Paul Vinogradoff

Previous articleNext article FreeBook ReviewsOutlines of Historical Jurisprudence. Paul Vinogradoff Gertrude SmithGertrude Smith Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by Classical Philology Volume 19, Number 3Jul., 1924 Article DOIhttps://doi.org/10.1086/360597 Views: 13 PDF download Crossref reports no articles citing this article.