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Part III

 

On the one hand, the rules and principles of English law of the late seventeenth and early to mid-eighteenth centuries may thus be said to have constituted its internal science. The new treatise literature of that period, on the other hand, generated by legal scholars, not only recapitulated the internal legal science but also analyzed, classified, systematized, and evaluated English legal institutions according to criteria drawn partly from within but also partly from outside those institutions, and thus may be said to have constituted an external science of English law. The frequent references to "legal science" made in that literature did not, however, expressly distinguish between its internal and its external aspects. William Blackstone, for example, in initiating in 1753 the first course on English law ever offered in an English university, said that "law is to be considered not only as a matter of practice but as a rational science," grounded on "general principles" inherent in the law itself, and that it is the task of the legal scholar to discern those principles. At the same time, Blackstone followed a method of analysis and synthesis of English law that had been introduced three generations earlier by Matthew Hale, a method that was drawn partly from philosophy, theology, and the natural sciences, as well as from the entire body of Western legal scholarship. Black-stone referred indirectly to that external aspect of the science of law in writing that the teaching of English legal science had been "committed to his charge to be cultivated, methodized, and explained," and that English law should be studied "in a solid, scientific method." Indeed, if only the internal mode of operation of the English legal system were to be taught, without external theoretical analysis and evaluation, it would hardly make sense to teach it in a university course designed, as he said, as part of the general education of "every gentleman and scholar."

It must also be noted that the authors of the first treatises on English law were not professors but judges and practicing lawyers, and their treatises in fact strongly affected the fundamental structural and institutional changes in the English legal system that took place in the late seventeenth and early to mid-eighteenth centuries. Indeed, a principal source of the differences between the new English legal theory and the legal theory that had prevailed previously in the West was the fact that the earlier legal theory was primarily professorial in its origin and nature, whereas the new English legal theory was primarily judicial in its origin and nature. The English Revolution exalted the role of the legal profession as guardian not only of the positive law but also of legal science. This fact, too, contributed to the integration of the internal and external aspects of English legal science— its method in the narrower sense and its theory in the broader sense.



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Читайте в этой же книге: Работников | Text 1 Why legal history is important | Text 2 Civil law and common law | TEXT 3 the transformation of english legal science | 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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Part II| TEXT 7 JUDGES PART II

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