The Nature Of The Common Law

Much of our law is based on authoritative texts, such as constitutions and statutes. The common law, in contrast, is that part of the law that is established by the courts. Common law rules predominate in some areas of law, such as torts and contracts, and are extremely important in other areas, such as corporations. Nevertheless, it has been far from clear what principles courts use—or should use—in establishing common law rules. In this lucid yet subtly argued book, Melvin Eisenberg develops the principles that govern this process. The rules established in every common law case, he shows, are a product of the interplay between the rules announced in past precedents, on the one hand, and moral norms, policies, and experience, on the other. However, a court establishing a common law rule is not free, as a legislator would be, to employ those norms and policies it thinks best. Rather, it can properly employ only those that have a requisite degree of social support. More specifically, the common law should seek to satisfy three standards. First, it should correspond to the body of rules that would be arrived at by giving appropriate weight to all moral norms, policies, and experiential propositions that have the requisite support, and by making the best choices where norms, policies, and experience conflict. Second, all the rules that make up the body of the law should be consistent with one another. Third, the rules adopted in past precedents should be applied consistently over time. Often, these three standards point in the same direction. The central problems of legal reasoning arise when they do not. These problems are resolved by the principles of common law adjudication. With the general principles of common law adjudication as a background, the author then examines and explains the specific modes of common law reasoning, such as reasoning from precedent, reasoning by analogy, drawing distinctions, and overruling. Throughout the book, the analysis is fully illustrated by leading cases. This innovative and carefully worked out account of the common law will be of great interest to lawyers, law students, students in undergraduate legal studies programs, scholars interested in legal theory, and all those who want to understand the basic legal institutions of our society.

Presents an ambitious narrative and fresh re-assessment of common law and natural law's varied interactions in America, 1630 to 1930.

John Chipman Gray (1839-1915) spent the greater part of his professional life as a professor at Harvard Law School where he taught property, trusts and future interests. The Nature and Sources of the Law was first published in 1909. The book is divided into two parts which respectively look at 'Nature' and 'Sources'.In Part I, Gray warns that the study of jurisprudence, in isolation, could lead to dogmatism. Rather he advocates the structure offered by common law with its reliance on flexible interpretations of statutes, the use of all relevant cultural inputs and a highly adaptable approach to the resolution of disputes.Gray, in Part II, turns his attention to sources of the law, and begins with statutes. Here he asserts that judges are the ones who actually turn into law, going against the conventional scholarship that judges merely interprets statutes. He also extensively examines the influence of tradition and the common law.

Explaining the curious legal doctrine of "coverture," William Blackstone famously declared that "by marriage, husband and wife are one person at law." This "covering" of a wife's legal identity by her husband meant that the greatest subordination of women to men developed within marriage. In England and its colonies, generations of judges, legislators, and husbands invoked coverture to limit married women's rights and property, but there was no monolithic concept of coverture and their justifications shifted to fit changing times: Were husband and wife lord and subject? Master and servant? Guardian and ward? Or one person at law? The essays in Married Women and the Law offer new insights into the legal effects of marriage for women from medieval to modern times. Focusing on the years prior to the passage of the Divorce Acts and Married Women's Property Acts in the late nineteenth century, contributors examine a variety of jurisdictions in the common law world, from civil courts to ecclesiastical and criminal courts. By bringing together studies of several common law jurisdictions over a span of centuries, they show how similar legal rules persisted and developed in different environments. This volume reveals not only legal changes and the women who creatively used or subverted coverture, but also astonishing continuities. Accessibly written and coherently presented, Married Women and the Law is an important look at the persistence of one of the longest lived ideas in British legal history. Contributors include Sara M. Butler (Loyola), Marisha Caswell (Queen’s), Mary Beth Combs (Fordham), Angela Fernandez (Toronto), Margaret Hunt (Amherst), Kim Kippen (Toronto), Natasha Korda (Wesleyan), Lindsay Moore (Boston), Barbara J. Todd (Toronto), and Danaya C. Wright (Florida).

This book showcases eight judges that exemplify judicial greatness and looks at what role they play in law and society.

In this study, W. J. Waluchow argues that debates between defenders and critics of constitutional bills of rights presuppose that constitutions are more or less rigid entities. Within such a conception, constitutions aspire to establish stable, fixed points of agreement and pre-commitment, which defenders consider to be possible and desirable, while critics deem impossible and undesirable. Drawing on reflections about the nature of law, constitutions, the common law, and what it is to be a democratic representative, Waluchow urges a different theory of bills of rights that is flexible and adaptable. Adopting such a theory enables one not only to answer to critics' most serious challenges, but also to appreciate the role that a bill of rights, interpreted and enforced by unelected judges, can sensibly play in a constitutional democracy.