A Treatise Of Legal Philosophy And General Jurisprudence. Volume 8. A History Of The Philosophy Of Law In The Common Law World, 1600-1900

A Treatise of Legal Philosophy and General Jurisprudence Volume 8 A History of the Philosophy of Law in the Common Law World, 1600–1900 A Treatise of Legal Philosophy and General Jurisprudence Editor-in-Chief Enrico Pattaro, CIRSFID and Law Faculty, University of Bologna, Italy Advisory Board Norberto Bobbio † Ronald M. Dworkin, School of Law, New York University, USA and Faculty of Law, University College London, UK Lawrence M. Friedman, Stanford Law School, Stanford University, USA Knud Haakonssen, Department of History, University of Sussex, UK Associate Editors Gerald J. Postema, Department of Philosophy, The University of North Carolina at Chapel Hill, USA Peter G. Stein, Faculty of Law, University of Cambridge, UK Assistant Editor Antonino Rotolo, CIRSFID and Law Faculty, University of Bologna, Italy A Treatise of Legal Philosophy and General Jurisprudence Volume 8 A History of the Philosophy of Law in the Common Law World, 1600–1900 by Michael Lobban Department of Law, Queen Mary, University of London, UK A C.I.P. Catalogue record for this book is available from the Library of Congress. 8 Volume Set: ISBN-10 1-4020-4950-1 (HB) ISBN-10 1-4020-4951-X (e-book) ISBN-13 978-1-4020-4950-7 (HB) ISBN-13 978-1-4020-4951-4 (e-book) Published by Springer, P.O. Box 17, 3300 AA Dordrecht, The Netherlands. Printed on acid-free paper All Rights Reserved © 2007 Springer No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. There are pictures in this volume where we have been unable to trace or contact the copyright holder. If notified, the publisher will be pleased to rectify any errors or omissions at the earliest opportunity. TABLE OF CONTENTS CONTENTS TABLE OF A Note on the Author Preface Chapter 1 - Precursors 1.1. The Age of Bracton 1.2. The Age of Fortescue 1.2.1. Fortescue on the Constitution of England 1.2.2. Fortescue on the Nature of Law 1.3. Christopher St. German 1.3.1. St. German on the Grounds of the Law of England 1.3.2. St. German on the Power of Parliament 1.3.3. Law, Conscience, and Equity in St. German’s Thought 1.4. Equity, Common Law, and Statute under the Later Tudors Chapter 2 - The Age of Sir Edward Coke 2.1. 2.2. 2.3. 2.4. Common Law Reasoning in the Early Seventeenth Century The Common Law and Legislation The Common Law and the Crown Common Law and Equity Chapter 3 - The Age of Selden and Hale 3.1. The Positivism of Selden and Hale 3.2. Hooker, Selden, and Hale on the Source of Political Authority 3.3. Constitutional Theories in the Civil War 3.3.1. Philip Hunton and the Mixed Monarchy 3.3.2. Henry Parker and Parliamentary Absolutism 3.3.3. Thomas Hobbes and the Sovereign State 3.3.4. Hale and the Revival of Common Law Constitutionalism 3.4. Thomas Hobbes’s Challenge to the Common Law 3.5. History, Custom, and Authority in Selden and Hale Chapter 4 - The Age of Blackstone and Kames 4.1. Challenging the Common Law: Sidney, Locke, and Popular Sovereignty 4.2. Common Law Constitutionalism Reasserted: Blackstone and the Glorious Revolution V VII IX 1 1 7 8 11 14 15 17 20 25 29 33 41 47 51 59 61 65 71 72 74 77 80 81 86 91 91 95 VI TREATISE, 8 - THE COMMON LAW WORLD, 1600–1900 4.3. 4.4. 4.5. 4.6. 4.7. Natural Law and Authority in Blackstone’s Thought Blackstone and Judicial Reasoning Scottish Legal Literature before Kames The Natural Jurisprudence of Lord Kames Kam