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Harvard Univ. Press, Cambridge, 1983, 657 pgs., index, end notes, maps
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Reviewer Comment: This is a more vital reference now to understanding
how and why our legal system is unique. Law is a social construct and our legal
system is under attack today
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Preface
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Introduction - The author begins thusly: "This book tells the
following story: that once there was a civilization called "Western
", that it developed distinctive "legal" institutions, values,
and concepts; that these Western legal institutions, values, and concepts were
consciously transmitted from generation to generation over centuries, and thus
came to constitute a "tradition", that the Western legal tradition
was born of a "revolution" and thereafter, during the course of many
centuries, has been periodically interrupted and transformed by revolutions;
and that in the twentieth century the Western legal tradition is in a
revolutionary crisis greater than any other in its history, one that some
believe had brought it virtually to an end".
He continues by noting that many people will not believe this or will dispute
its origins or condition today. Then he defines the key terms, 'western'
'legal', and 'tradition'. This is a lengthy introduction, but important for an
understanding of the chapters that follow. His fundamental point is that this
"Western Legal Tradition" made use of but transformed its Greek,
Roman and Biblical antecedents to create something quite new and different. And
despite the political - social - revolutions since its inception the body of
law has developed but not been drastically altered.
The author summarizes as follows: "The principal characteristics of the
Western legal tradition may be summarized, in a preliminary way, as follows:
1. A relatively sharp distinction in made between legal institutions (including
legal processes such as legislation and adjudication as well as as the legal
rules and concepts that are generated in those processes) and other types of
institutions.
2. Connected with the sharpness of this distinction is the fact that the
administration of legal institutions, in the Western legal tradition, is
entrusted to a special corps of people, who engage in legal activities on a
professional basis as a more or less full-time occupation.
3. The legal professionals, whether typically called lawyers, as in England and
America, or jurists, as in most other Western countries, are specially trained
in a discrete body of higher learning identified as legal learning, with its
own professional literature and its own professional schools or other places of
training.
4. The body of legal learning in which the legal specialists are trained stands
in a complex, dialectical relationship to the legal institutions, since on the
one hand the learning describes those institutions but on the other hand the
legal institutions, which would otherwise be disparate and unorganized, become
conceptualized and systematized, and thus transformed, by what is said about
them in learned treatises and articles and in the classroom".
"The first four characteristics of the Western legal tradition are shared
by the tradition of Roman law as it developed in the Roman Republic and the
Roman Empire from the second century B. C. to the eighth century A. D. and
later."
This is not the case in other previous or contemporary societies.
5. "In the Western legal tradition law is conceived to be a coherent
whole, an integrated system, a 'body', and this body is conceived to be
developing in time, over generations and centuries".
6. "The concept of a body or system of law depended for its vitality on
the belief in the ongoing character of law, its capacity for growth over
generations and centuries - a belief which is uniquely Western".
7. "The growth of law is thought to have an internal logic; changes are no
only adoptions of the old to the new, but are also part of a pattern of
changes".
8. "The historicity of law is linked with the concept of its supremacy
over the political authorities".
9. "Perhaps the most distinctive characteristic of the Western legal
tradition is the coexistence and competition within the same community of
diverse jurisdictions and diverse legal systems". "The same person
might be subject to the ecclesiastical courts in one type of case, the king's
court in another, is lord's court in a third, the manorial court in a fourth, a
town court in a fifth, a merchant's court in a sixth".
10. "There is a tension between the ideals and realities, between the
dynamic qualities and the stability, between the transcendence and the
immanence of the Western legal tradition".
"Laws and History"
In this section the author points out that much of the historical theory of the
development of law and legal systems is no longer believed or taught in law
schools. But he describes this historical development anyway. Moreover, he
notes, the academic belief in the nature of history itself is diverse and
divisive. As he writes, "However, those who go so far as to reject all
meaning in history, all direction, and all periodization should not have any
greater objection to the story told here than they would have to more
conventional accounts that merely attach to the same events and facts less
meaning".
The remaing lengthy introduction concerns the history of the development of the
Western legal tradition over the course of centuries and through the six major
political - social revolutions that affected it.
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Part I The Papal Revolution and the Canon Law
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Chapter I - The Background of the Western Legal Tradition: The Folklaw
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Chapter 2 - The Origin of the Western Legal Tradition in the Papal
Revolution
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Chapter 3 -The Origin of the Western Legal Science in the European
Universities
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Chapter 4 - Theological Sources of the Western Legal Tradition
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Chapter 5 - Canon Law: The First Modern Western Legal System
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Chapter 6 - Structural Elements of the System of Canon Law
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Chapter 7 - Becket versus Henry II: The Competition of Concurrent
Jurisdictions
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Part II The Formation of Secular Legal Systems
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Chapter 8 - The Concept of Secular Law
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Chapter 9 - Feudal Law
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Chapter 10 - Manorial Law
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Chapter 11 - Mercantile Law
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Chapter 12 - Urban Law
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Chapter 13 - Royal Law: Sicily, England, Normandy , France
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Chapter 14 - Royal Law: Germany, Spain, Flanders, Hungary, Denmark
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Conclusion
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We add some relevant references
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Marcia L. Colish - Medieval Foundations of the Western Intellectual
Tradition 400 - 1400
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