English Legal History Outline

Intro

Attitudes to Studying Legal Hist
1) Holmes- the Common Law…Holmes famous article is “The Path, the Law”
He talks about the point of studying legal history.

Case:
Buck v Bell- sterilizing – 3 yrs of imbeciles is enuf
Other tools: life of the law is not logic but experience.
– Substance law corr w/consc”- forms expressed dictated by law
US- buy house, fee simple (medieval) idea that we still have today…Form dictated by the past, substance dictated by current convenience. having fee simple is same in India too

Forms: transactions dictated by historical concepts- late medieval period in Engl. like fee simple

– To master law, you got to understand how it has gotten to be as it is.
Path law- point of the book by Holmes is to liberate you from the past- can stand back and say “does it make sense now”
– 1st step toward enlightened skepticism- lose the reverence
– get dragon out of the cave and count the teeth
– Right to bear arms, see how it got there and then ask is it good today…understand but don’t be governed by the past
Ex: don’t make up a reason to explain the continued existence of a rule. Ask if the rule is still sensible today. Ex is the rule agst perpetuities- this justifies free markets now but the rule wasn’t about that and came around before.
– holmes never did anything with his ideas
– He used Legal History to argue about what modern law should be
– He arued that law compelled external obj. standards so law not concerned with moral rights and wrongs. He uses legal history to justiy his views about existing st law
-studying hist is liberating- lose the reverence
H doesn’t pract what he preaches- ends up using hist to arg about what modern law should be

Uses Made of Hist
1) Legitimate/Control the Present
Ex: Reparations
Ex: US originalism (wisdom of the founders…may think past people were wiser- painters study masters)
Ex: Jury trials constitue but can argue that it meant just as it existed in Eng. at the time
Ex: US cruel and unusual punishment, look at what term meant in past
2) Use Hist to Mock Modern Doctrine/Delegitimate
Gom (SP) Gilmore- Death Contract
– Contracts for cokes and jets are governed by the same rules. G thinks it’s rubbish.
– Critical legal studies ppl trash and show absurd bases
– Simpson cannibal case – necessity is no defense to homicide- absurd-wll, fed judges

Why People have Some Issues w/Legal Hist
1) Hist Critical to Peeps’ Perception of Identity
– We think issues as American (tgiving ) tied up in history…play down stuff w/the Indians
– Comes up more in other parts of the world (ex: Canadians)
– US Legal study is central to US identity
2) Legal Hist Has Practical Value= precedent
– Often legal arguments are historical
– Cite to cases, precedent- the past should control the present
3) Why Peeps Do Legal Hist
-Hard to make generalizations about it
– Some history is devoted to making generalization-
– Ex: chic- economic analysis of law-argument for how CL developed, economically efficient rules win out- survival of the fittest.
– Prof historians think generalizations r rubbish
4) How did US get so rich?
– 1 approach has to do w/legal institutions- hard to figure out which ones

The Two Major European Legal Traditions: Common Law and Roman Law

Our society attaches lotsa imptnce to law and legal studies
(fights in court like the abortion fight)
(most countries vote heads of gov’t out, US did it legally)
– All societies except simple ones have some kind of law
– Charmain Mao of China didn’t do stuff by passing laws- correct ideas just filtered down from the Chairman. Same for the Nazi Holocaust.
– So significant law varies b/w diff types of society

In Euro societies, 2 great fxns of govt
Law
War
Systems of Legal thought differ and Institutions differ/Legal traditions= conceptions, ways of caregiving
Ex: in US judges are big shots but in Continental