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TEXT 3 the transformation of english legal science

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Part 1

In the late seventeenth and early to mid-eighteenth centuries, the English legal system underwent fundamental changes in its method, that is, in the basic principles by which it operated. The new emphasis on the historicity of English law, that is, on the normative character of its historical development over generations and centuries, was manifested in new ways of systematizing it.

The most obvious methodological manifestation of the new historical jurisprudence was the emergence of the modern doctrine of precedent. Related methodological changes included the transformation of some of the historical forms of action into modern remedies for the protection of rights of property and for enforcement of obligations of contract, tort, and unjust enrichment. Closely connected both with the transformation of the forms of action and with the doctrine of precedent was the resort to legal fictions as a device for adapting older doctrines and procedures to new purposes.

Other changes in legal method were closely connected not only with the new emphasis on the historicity of law but also with new philosophical concepts of truth and justice that grew out of older jurisprudential theories of natural law and positivism. These included the increase in the independence of the jury as a trier of fact and law, the expansion of the rights of the accused in criminal trials, the introduction of the adversary system of presentation of evidence, and the establishment of new criteria of proof in civil and criminal cases.

Finally, the transformation was reflected in a new type of legal literature, namely, modern legal treatises analyzing and systematizing English law as a whole as well as some of its individual branches.

These topics—doctrine of precedent, forms of action, legal fictions, jury trial, rights of the accused, adversary system, evidence, treatises—may seem at first to be only a list of diverse features of the Anglo-American legal system. They may also be seen, however, and are treated in this chapter, not only as legal data but also as interlocking ways in which legal data were understood—that is, as important constituent parts of a coherent body of knowledge about law, and in that sense as elements not only of a legal method in the more technical sense but also of a legal science in the more theoretical sense. Indeed, in the sixteenth and seventeenth centuries the words "method" and "science" were often used inter­changeably, bringing together mode of operation and theory.

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Читайте в этой же книге: Работников | Text 1 Why legal history is important | Part III | TEXT 7 JUDGES PART II | TEXT 8 JUDGES PART III | Text 10 the decline of common law | A. State Substantive | B. Federal Criminal Law | A well-regulated militia being necessary to the freedom of a free state, the right of the people to keep and bear arms shall not be abridged. | D. Juvenile Justice |
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Text 2 Civil law and common law| Part II

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