The Laws Two Bodies: Some Evidential Problems in English Legal History

Hardcover | July 15, 2001

byJohn Baker

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The common law is almost universally regarded as a system of case-law, increasingly supplemented by legislation, but this is only partly true. There is an extensive body of lawyers' law which has a real existence outside the formal sources but is seldom acknowledged or discussed either bytheorists or legal historians. This will still be so even when every judicial decision is electronically accessible. In the heyday of the inns of court, this second body of law was partly expressed in `common learning'. a corpus of legal doctrine handed on largely by oral tradition and a system ofeducation informing the mind of every common lawyer. That common learning emanated from a law school in which the judges actively participated, and in which the lecturers of one generation provided the judiciary of the next. Some of it was written down, though the texts were until recentlyforgotten, and its importance was overlooked by historians as a result of changes in the common-law system during the early-modern period. Other forms of informal law may be seen at work in other times and contexts. Although judicial decisions will always remain prime sources of legal history, aswell as of law, the other body of legal thought and practice is equally `law' in that it influences lawyers and has real consequences. Neither the history nor the present working of the common law can be understood without acknowledging its importance.

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The common law is almost universally regarded as a system of case-law, increasingly supplemented by legislation, but this is only partly true. There is an extensive body of lawyers' law which has a real existence outside the formal sources but is seldom acknowledged or discussed either bytheorists or legal historians. This will still b...

John Baker is Downing Professor of the Laws of England at the University of Cambridge

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Format:HardcoverDimensions:218 pages, 8.5 × 5.43 × 0.63 inPublished:July 15, 2001Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199245185

ISBN - 13:9780199245185

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Table of Contents

I. Case-Law and Statute-LawII. Legal FictionsIII. Common Usage and Common LearningAppendices: Some Illustrative TextsA. Common Practice and Communis ErrorB. Fictions in Writs and PleadingsC. Fictions in Trial: Benefit of Clergy for LaymenD. Linguistic FictionsE. Improper FictionsF. Common LearningG. Opinions of CounselIndex

Editorial Reviews

`The Law's Two Bodies is undoubtedly of general interest to legal historians of any period, as well as to other critical analysts of law and its interpretation, at two levels. Firstly, Baker's lectures are an important lesson in how the meaning (or a fuller meaning; or an alternative meaning)of written law in its various forms may be found by researching related systems of legal knowledge, such as the education of legal personnel. Secondly, The Law's Two Bodies is a valuable study of how recorded law is not necessarily the absolute source of authority it may appear - or be claimed - tobe.'Law Quarterly Review