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Common Law and English Jurisprudence 1760-1850, by Michael Lobban
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Questioning accepted views of common law, this book attempts to clarify the nature of common-law practice and the way in which it was envisaged by its practitioners. It asserts that attempts--notably those by Blackstone and Bentham--to expound or criticize common law in essentially theoretical terms were mistaken, and examines the evolution and spread of judicial ideas which were grounded upon the work of moral and political philosophers. Covering important philosophical and political debates of the time and the development of legal theory over a period of 70 years, The Common Law and English Jurisprudence makes a valuable corrective contribution to our understanding of this critical period in English legal history.
- Sales Rank: #4850325 in Books
- Published on: 1991-09-12
- Original language: English
- Number of items: 1
- Dimensions: 8.75" h x 1.03" w x 5.63" l, 1.28 pounds
- Binding: Hardcover
- 336 pages
Review
"It is an important contribution to the history of legal theory in the common law world....Lobban's thesis is complex and highly original; he is persuasive in arguing for a wholesale revision in historical understanding of nineteenth-century legal evolution."--Journal of British Studies
About the Author
Michael Lobban is at St John's College, Oxford.
Most helpful customer reviews
3 of 3 people found the following review helpful.
Blackstone, Bentham, Austin and English Legal History
By Ronald H. Clark
With all the renewed attention being paid to William Blackstone and his commentaries, as reflected in the three recent books written or edited by Wilfrid Prest, it seemed like a good time to take another look at this fine study first published in 1991. The book covers the end of the 18th and half of the 19th century. The author focuses upon the deficiencies of the common law, the role of Blackstone's "Commentaries," Jeremy Bentham's criticisms of Blackstone and the common law, and an interesting synthesis of views employed by John Austin. The non-lawyer should not be reluctant to jump into the book as it is a work of legal history, not a legal text. While at points it can be a bit heavy going, the author is quite good at explaining the concepts and issues he is discussing in language the layman can understand.
The author tackles some very important issues in English legal history. Was the common law a system of rules, or remedies or what? What was the system of writs and did it help or hinder the common law from becoming an effective legal structure? Interestingly, from where did the common law derive its fundamental principles--eternal principles or pragmatic solutions? The author's chapter on Blackstone is quite effective, especially in explaining Blackstone's reliance upon an institutional structure in systematizing the common law. The chapter certainly affords a valuable perspective on what Blackstone accomplished and where he came up short. There are several chapters on writs and pleading and their role in common law development. With the exception of a few places, such as Virginia, complex common law pleading in America died out long ago, and so this chapter helps the reader to understand the key role it played.
The author's discussion of Bentham, his compaign to simplify the common law and procedure, and to place reliance upon codes, covers a lot of ground in a compact and efficient format. Bentham is a giant figure, but his writing is so extensive that it is unusual to find a compact, yet cogent, discussion of his ideas. The author also discusses the resulting debate of codification which the Benthamites lost, but did secure some of his other reforms. The author finishes up with a solid discussion of John Austin and what he was trying to accomplish: create a systematic view of legal concepts, with law being rules. The author sees Austin as combining elements from both Blackstone and Bentham as he fashions analytical jurisprudence. The final chapter looks at some specific areas of rules and remedies in 19th century legal development. The analysis is supported by ample footnotes (where they belong: at the base of each page) and a 17-page bibliography. We hear a lot about these giants of English jurisprudence--this book helps us begin the process of understanding their critical contributions.
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