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Posts Tagged ‘Civil Law’

Legal Positivism and the Common Law

In Britain, History, Humanities, Jurisprudence, Law, Oliver Wendell Holmes Jr., Philosophy, Western Philosophy on April 30, 2014 at 8:45 am

Allen 2

Legal positivism, in the most basic sense, holds that laws are the manifestation of sovereign commands. It stands in contradistinction to natural law or the judicial conformity with human reason that supposedly defines the common law.[i] Legal positivism generally rebuffs the premise that law and morals are necessarily or even customarily united. Legal positivists from Jeremy Bentham to John Austin to H.L.A. Hart maintained or implied that the formal source of the law was human promulgation, not nature or divine decree; theirs was an analytical jurisprudence that treated the normative function of the law as imposing rules and duties upon the subjects of the sovereign. Positivism generally holds that law is logical and analytical and made up of legislative policies with a linear history that can be understood through utilitarian calculation. To comprehend the law in the positivist paradigm requires analyzing the signification of words as grammatical imperatives—as “commands,” in Austin’s lexicon.

The common law, on the other hand, traditionally was seen as the vast accumulation of judicial decisions as against the commands of legislatures or the unbinding whims of equity courts; a legislative code announces rules whereas judicial decisions follow, clarify, and sustain them. The common law is a body of cases, a growing organism representing the general rules and inherited customs of the jurisdiction. It is simultaneously conservative and progressive. It comes together over time as innumerable judges and justices struggle with and against precedent to apply longstanding rules to new and unique situations. It responds and reacts to cultural norms rather than making them.

What distinguishes the common law from a civil law system is the doctrine of stare decisis (“let the decision stand”), which requires judges to follow precedents established by prior decisions or to distinguish the facts of new cases from the facts of previous cases in order to reach an applicable rule. Certain rules persevere because they triumph over lesser practices that have not worked. Oliver Wendell Holmes, Jr., explained that this process of creating and sustaining laws in graduated stages does not always make sense or produce the perfect outcome: “In form its growth is logical. The official theory is that each new decision follows syllogistically from existing precedents. But just as the clavicle in the cat only tells of the existence of some earlier creature to which a collar-bone was useful, precedents survive in the law long after the use they once served is at an end and the reason for them has been forgotten.” If some laws seem to be artifacts, Holmes qualifies, they are not likely to burden the people subject to them, for their effect is in their use, and anyway it is only a matter of time before they are overgrown by the “secret root from which the law draws all the juices of life,” which is to say the legislature.

 

Note

[i] The literature on this subject is enormous. The distinction between legal positivism, natural law, and the common law has been the object of discussion among so many jurists and jurisprudents over centuries that it is impossible to recommend a single text on the topic that would clarify all competing views. The most authoritative voice on matters of positivism today is probably Joseph Raz.

 

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Outline and Summary of Thomas D. Morris, Southern Slavery and the Law: 1619-1860 (Chapel Hill and London: University of North Carolina Press, 1996).

In American History, Arts & Letters, Book Reviews, History, Jurisprudence, Law, Laws of Slavery, Legal Education & Pedagogy, Nineteenth-Century America, Politics, Slavery, Western Civilization on April 20, 2011 at 4:23 pm

Allen Mendenhall

Introduction

The introduction serves as a brief historiographical essay that situates Morris’s text alongside other prominent texts and authors in the field.  Morris uses the introduction to familiarize readers with, among other things, the differences between common law and courts of equity, the differences between civil and criminal law, and other relevant information such as the fact that statutes in England and America are mostly products of the nineteenth century.  Morris believes that slavery reinforced English racism in that the English were predisposed to view Africans as inferior and so used the law to categorize racial difference and justify slave property.  Morris suggests that experts can skip most of his introduction probably because the introduction is, as I have suggested, a piece about historiography rather than a history in itself. 

PART ONE

Sources: Racial and Legal

Chapter One: The Function of Race in Southern Slave Law

Popular science maintained that blacks were inferior, and this understanding was reflected in law.  Indians were not enslaved as often or in the same numbers as blacks.  The presumptions and definitions of “slave” had to do with blackness; therefore, the legal status of mulattoes was often in flux.  Law had to define people by race and then determine their free or slave status afterwards.  Several Southern states adopted laws allowing free blacks to sell themselves as slaves.

Chapter Two: The Sources of Southern Slave Law

Some Southern slave law derived from Roman law; some derived from English common law.  The origins of Southern slave law are traceable to at least Virginia.  The degree to which Virginia followed or revised the common law is debatable.  In early Virginia, many blacks were treated as indentured servants, not slaves.  Not until the mid-seventeenth century did blacks become routinely associated with slavery.  There is little evidence to suggest that Virginians had a sophisticated understanding of ancient Roman or other European legal traditions.  A child’s status as free or slave followed the mother under the judicial principle of partus sequitur ventrem.  The traditional common law rule was that the child’s status followed the father.  Some appellate courts tried to link their opinions to the precedents of civil law or the Roman law on slavery.  Some judges analogized slavery to English villenage.  The roots of slavery in Hebraic tradition and Biblical literature had an enormous influence among nineteenth-century Southern whites. Read the rest of this entry »

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