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The spirit of Law

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发表于 2/4/2018 00:42:56 | 显示全部楼层 |阅读模式
本帖最后由 郭国汀 于 2/4/2018 17:51 编辑

      The law and the legal system were created to affirm relationships by giving definition to the rights and obligations of those relationships, dealing with broken relationships and restoring the relationships where the rights and obligations of the parties were not being fulfilled.
       People can create their own relationships through contracts, partnerships and joint ventures, defining in large part their own understanding of their rights and obligations. The law, as we know it, at least on the surface, is about relationships.
       When a relationship is broken, there needs to be an effort to repair the breach, to work out a new relationship that is just and fulfilling. The law and the legal system have their own limitations in restoring relationships, but they should play a critical role in the process nevertheless.
       Restorative justice grows out of the biblical understanding of justice as described above: establishing right relations, fulfilling the rights and obligations of the relationship and, when there is a breach, attempting to make things right, healing the harm and finding solutions that would restore the well-being or shalom of the relationship.
Restorative justice focuses on the harm done, not on legal guilt. The wrong is seen primarily as a violation of a human being, of the relationship and of shalom, not primarily as a violation of rules. The focus is on solving the problem, healing and making things right, not on the infliction of punishment. Making things right requires restitution, accountability and accepting personal responsibility for one's own actions. The focus is, primarily, on the future not the past. Ultimately, the goal is to bring the parties together so as to collectively work out how things are to be rectified and how they are to live together in the future. [1]
       Abraham Lincoln as saying:
     Discourage litigation. Persuade your neighbors to compromise
     whenever you can. Point out to them how the nominal winner is
     often the real loser-in fees, expenses, and waste of time. As a
     peacemaker, the lawyer has a superior opportunity of being a
     good man. Never stir up litigation. A worse man can scarcely
      be found than one who does this.[1]
       former Supreme Court Justice Warren Burger said:
     The entire legal profession - lawyers, judges, law teachers -
     has become so mesmerized with the stimulation of the court-
     room contest that we tend to forget that we ought to be healers
     - healers of conflicts. Doctors, in spite of astronomical medical
     costs, still retain a high degree of public confidence because they
     are perceived as healers. Should lawyers not be healers? Heal-
     ers, not warriors? Healers, not procurers? Healers, not hired
     guns?[2]

       Law study must start from the premise that law is not an accidental or arbitrary institution among men, a necessary evil, a convenient arrangement serving some social expediency ; but that it has its inner reason in the very nature of man, that it forms a part of his moral nature and constitutes an important factor in his social existence.[3]
   Physical and intellectual factors being different, there is necessarily a variation in the essential phenomena of their social life as well as in the general directions of their intellectual and moral development.
  In every people the social life in morals, customs and intercourse, develops itself in accordance with its individual nationality, and, accordingly, the conceptions of the legal order of life are, in every nation, developed in the national direction of its intellectual and moral existence; and, necessarily, in different manners by different nations. Therefore every popular law must have a national character, and, indeed, it will give the best representation of the intellectual and social conditions prevailing in the nation.
       The idea of an abstract universal law or universal state is in contradiction to the anthropological organization of the human species.
       The law may be in advance of the national life, as when the legislation recognizes the directions and needs of the time and shapes the law accordingly. Every actual law therefore is the result of the past and only to be recognized by it, but it also includes more or less of the germs of the future.
       The differences and changes in the legal life of nations do not arise from the capricious play of chance, but that they are founded in an inner natural necessity.
      Whether the law in its development is not to be regarded as a collection of more or less prominent phenomena of human character, ripe or unripe fruits of the human intellect.
      The differences in law is not explained by a mere game of chance. It is the consciousness of right which shows itself in them, its elements furnish the base for the various legal formations, and only the one-sided predominance of one or the other clement in the idea of right produces the main differences in legal systems.
      Freedom and compulsion are the fundamental elements of law. The subjective right is freedom, the objective represents compulsion.Asia is the land of compulsion and objective law, European that of freedom and subjective right.
      In Asia the law appears as objective power and necessity towards the individual. It is a higher order of life to which the individual must submit. It grants him a certain measure of freedom and subjective right, but it has its base and origin, not in the liberty and rights of the individual, but in the objective command from above. Subjection, not freedom, is the basis of the law.
      In the oriental countries it is the will or command of the ruler which forms the principle of the law, of whatever nature the power of the ruler may be; he may have a patriarchal family power, as in China, or be absolute despot, in which case the whole people appear as slaves, as in farther India, especially Siam. In central Asia, principally India, the law rests on the moral religious order which the priests, the Brahmans, have given to the people. In western Asia, it is the command of the founder of the religion, who at the same time with the creed ordains the law; as is the case among the ancient Persians, the Jews and the Mohammedans. It was Christianity which produced a separation of religion and law and made possible a union of both with freedom.
      The European legal systems rest on the principle of individual liberty. Right and law are not given by rulers or priests but emanate from the people and are incorporations of its liberties. In the Greek laws, subjective and objective right were in an immediate union; freedom consisted mostly in the general participation in public life; the private law was subordinate and had not yet arrived at any development. The equal development of public and private law, or of objective and subjective right, appears for the first time in the Roman and Germanic laws. These two legal systems represent the advanced parts of legal development combined; they are its completion, and therefore are the basis for the whole modern law of the civilized world. Both rest on the liberty of the individual.
       In the Roman law the individual liberty and its legal expression appear as an abstract objective conception shared by every individual. Right is thus conceived objectively and legally and equally determined for all, so that all are measured by the same standard and equally judged.
All law therefore emanates from the individuals, has their subjective rights for a basis, and their recognition and protection as an end; but it only becomes actual law when it is established in an objective, all-ruling form; in whatever manner this may be effected, whether by law or custom, or by the action of magistrates, jurists or emperors.
  A firm and absolute governmental power as a general bearer of the objectivity of right, is essential to the Roman law. But this state itself rests on the subjects, and-during the republic and by themselves-was formed by means of the peculiar firm organization of the body of the citizens and their rule over subjugated peoples.
  With the corruption of this body and the extension of the civil law, this relation could no longer be maintained and the objective power in the State was therefore grasped and absolutely maintained by one person. The emperor appears as the incorporated popular will. He is a despot, but not like the despot of the Orient,  he has to see to the maintenance of the rights of all.
  With the introduction of Christianity a new principle was given to the imperial power: that of the divine right of kings. With this the antique Roman life is discontinued, the old principle of freedom and equality in the empire, and also in the law, disappears, the despotic Byzantine differentiation into castes is introduced, and the whole Roman system approaches its end.
   The objective law lives only in the consciousness and testimony of social associates and is protected by them. Individuals group themselves according to their peculiar conditions in life, either according to the social scale of feudal and peasant rights, or by corporations into communities and guilds. The state is only the aggregate of these subjective formations and unions.
      Accordingly every rank has or creates its own laws by decision or custom. The general abstract law has only a small sphere for its action. General enactments concerning the law do not exist, neither do general courts ; every sphere of life has its own law and also it own proper court.
      In France the objective element was adopted by the kings and carried through by force and cunning; the republic and empire then completed this Romano-French absolutism and centralization. In Germany the subjective elements of the particular peoples and states retained their preponderance; the legal unity was effected by the reception of the Roman law, but the universality of the empire was destroyed and the principle of the modern state was developed in the variegated and unsatisfactory form of the small states. All these individual formations secured the independence of the members, but the unity of the nation was not entirely lost in the popular consciousness.
       The importance of the Roman law rests mainly on the fact that in it has been developed the abstract conception of subjective right ; in other words, the universal equality of the rights of the individual in the sphere of private law. In this is contained what is called the universal character of the Roman law.
     

.[1] JOS
EPH G. ALLEGRETRI, THE LAWYERS'S CALLING: CHRISTIAN FAITH AND LEGAL PRACTICE (Paulist Press, 1996) at 92-93.
[2] ALLEGRETTI, THE LAWYER'S CALLING, at 69(quoted from THE SPIRIT AND THE LAWThomas W. Porter, Jr.*26 Fordham Urb. L.J. 1155 (1998-1999)
[3]GUSTAVE RAVENL, “ Spirit of the Roman Law”,12 Green Bag 598 (1900) pages, 598.



 楼主| 发表于 2/4/2018 18:25:22 | 显示全部楼层
本帖最后由 郭国汀 于 2/5/2018 12:31 编辑

The spirit of the Common law

        Louisiana alone, of the states carved from the Louisiana purchase, preserves the French law. In Texas, only a few anomalies in procedure serve to remind us that another system once prevailed in that domain. Only historians know that the custom of Paris once governed in Michigan and Wisconsin. And in Louisiana, not only is the criminal law wholly English, but the fundamental common-law doctrines, supremacy of law, case law, and contentious procedure, are likely to make the legal system of that state a common-law system in all but its terminology.In Quebec, likewise, there are many significant signs of common-law influence. The Roman-Dutch law of South Africa is adopting English conceptions. Finally, even Scotland, which received the Roman law in the sixteenth century, is becoming a common-law country. Except as it lingers in their legal vocabulary, the Scotch have almost abandoned Roman law in all their courts.' From these examples, it is easy to see what will be the fate of the existing system in Porto Rico and the Philippines.
        Jefferson, in 1815, denounced the common-law doctrine of supremacy of law, when applied by courts in holding legislative acts unconstitutional, as a theft of jurisdiction.
       The fundamental theory of the common law that litigation is contentious, and wherever arbitrary discretion has obtained a serious foothold, the common law ultimately has prevailed. Probate, administration, and divorce have been absorbed into our American common law. Case law and precedent have turned admiralty into a common-law mold. Equity and equity procedure have been legalized. Precedent and case law in the one, and the doctrine of contentious procedure in the other.
       In addition to this far-reaching principle, which fixes the common-law doctrine of the supremacy of law in our institutions, the common-law dogmas of inviolability of person and property, of the local character of criminal jurisdiction, of due process of law - a phrase as old at least as the reign of Edward III -that private property cannot be taken for private- use, nor for public use without due compensation - a doctrine as old as Magna Carta - that no one shall be compelled in any criminal prosecution to be a witness against. himself, and of the right of trial by jury, with all that was meant thereby at common law - all these dogmas are protected in state and federal constitutions so as to be-substantially beyond the reach of legislation. [1]
       The common law, however, is concerned, not with social righteousness, but with individual rights; the common law knows individuals only,
the common law for private property, that it will not authorize the least violation of it; not even for the general good of the whole community. the law permits no man, or set of men, to do this without consent of the owner of the land.  In vain it may be urged that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every individual's private rights.[2]
       "Litigation is a game in which the court is umpire. The rules are in the knowledge of the court, and will be declared and applied by it as required. It is for the parties to learn the rules and play the game correctly at their peril.[3]As Manson has put it, "Law is in the nature of a cock-fight, and the litigant who wishes to succeed must try and get an advocate who is a game bird with the best pluck and the sharpest spurs.[4]  In other words, the common-law theory of litigation is that of a fair fist fight, according to the canons of the manly art, with a court to see fair play and prevent interference.
       We strive in every way to restrain the trial judge and to insure the individual litigants a fair fight unhampered by mere considerations of justice. To give them this fair play, we sacrifice public time and money.
       What is the spirit of the common law? Three characteristic doctrines set off the common law system from all others, namely, (i) the supremacy of law, (2) case law and precedent, and (3) contentious procedure. The supremacy of law- the doctrine that all questions may be tried in the course of orderly litigation between individuals, and that no person and no act is beyond the law--is the Germanic principle that the state is bound to act by law. It is to be seen in Bracton's saying that the king is "under God and the Law,"
       Contentious procedure is Germanic, and characterizes English law from before the Conquest. But these three doctrines resolve themselves to a fundamental proposition that law exists for individuals, and hence is to deal with every question as a contest between individuals, is to decide it on its individual facts, not arbitrarily, but as like cases have been adjudged for others, and is to allow the parties to fight out the contest for themselves, and as much as possible in their own way.
       At common law the king was parens patriae. He was charged with the duty of protecting the public interests, and he wielded something very like our modern police power. This power was limited on every side by the maxims of the common law, and the bounds set by the lex terrae.
       The common law, in the interest of the individual, is struggling with the prerogative of the people, represented by the police power, as it struggled with a like prerogative of the crown from Henry VII to James II.
       Its cardinal doctrine is that law is reason and reason is law. "But," said James I, "have I not reason as well as my judges? " And may not the people say, "Have we not reason, as well as our courts?"
       God had endowed his Majesty with excellent science, and great endowments of nature; but his Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason, but by the artificial reason and judgment of law, which law is an art which requires long study and experience before that a man can attain to the cognizance of it."[5]
       Hobbes: But the doubt is of whose reason it is that shall be received for law, not Sir Edward Coke's an 'artificial perfection of reason, gotten by long study, observation, and experience,'it is not that jurisprudentia or wisdom  of subordinate judges, but the reason of this our artificial man the commonwealth, and his command that make the law." [6]
       This same obstinate individualism of the common law, which makes it fit so ill in many a modern niche, may yet prove a necessary bulwark against an exaggerated and   enfeebling collectivism. When from the sixteenth to the eighteenth centuries the whole world was turning absolutist, England alone kept alive the local, individual, legal government of the Middle Ages.
The easy-going Austrian, who shrugs his shoulders and accepts-wrong as part of the order of nature, with the Englishman who litigates to the end in vindication of the most trivial rights, he exhorts his countrymen to a livelier individual interest in justice and individual participation in the battle for right.
       The spirit of the constitution has been for over two hundred years a synonym for constitutional and political morality.In April 1969 Chief Justice Wyzanski wrote, 'the law grows from the deposits of morality. Law and morality are, in turn, debtors and creditors of each other."Men have also used the spirit of the constitution to sanction the fundamental principles of governance, the established institutions of church and state, and reform and revolution.
       The spirit of the constitution. It has proved to be a political imperative and has produced a code of conduct consisting of rules, ethics, and beliefs that constitutes Britain's political morality.Bagehot in 1867 called an 'ever-altering,' 'a living constitution' that 'is changing daily.'[7]the spirit also may be a dangerous one, for it is volatile, nebulous,amorphous, fluid, slippery, and seldom tangible.
       Blackstone designated the aspects of the spirit of George III's constitution as a trinity: the spirit of his ancestors, the spirit of the age, andthe spirit of humanity.the judge believed that the parliamentarians' virtue and wisdom in so doing belonged not only to the spirit of the constitution, but as well to the spirit of their own age and to that of their ancestors.
The House Of common resolved that: 'True liberty consists in that security which the laws and our happy constitution give us, for our persons, our lives, and our property; nor can this valuable blessing be preserved without a due veneration for the legislative authority of the kingdom, and a perfect obedience to the law .
       The rule of law also regarded rich and poor, great and small, as equals before the law, and when Wilkes sued Lord Halifax in 1769, Lord Chief Justice Wilmot thundered from the Common Bench: 'the law makes no difference between great and petty officers. Thank God, they are all amenable to justice, and the law will reach them if they step over the boundaries which the law has prescribed."[8]
       The spirit of the age - meaning new values and attitudes, or new emphases on old ones. In this Age of Reason, the reasonable, the fair, and the moderate were all being reduced to rules.
Balance itself is a component of the constitution's spirit that Georgian Englishmen held in high esteem. As a principle, balance governed much in eighteenth-century aesthetics - architecture, drama, letters, poetry and prose, and painting. Men of law and of politics were coming more and more to use the spirit of the constitution as a liaison between law, morality, and ethics.
       L. S. Amery, a retired cabinet minister, wrote glowingly in 1946 of 'the great game of politics,'one philosopher has called public law simply the rules of the game. In 1953 Weldon used with telling effect analogies between politics and games, and in so doing he caught the full flavour of the constitution's spirit. Oxford philosopher converted laws of society into rules of the game; and he noted that they were neither sacrosanct nor infallible, simply necessary and practical. 'Mr Beresford Craddock succinctly defined this mode in terms that illuminate the spirit of the constitution: 'What does the "British way of life" mean? Briefly summarized, it is: fair play, the rule of law, and order.
       Denning, Hart, Heuston, and MacDermott writing in the 1950s, assumed balance to be the quintessence of the constitution's spirit. Fairness, too, has had a long pedigree, and reasonableness antedates by several centuries the Age of Reason. The fair, the reasonable, and the balanced have been the most stable components of this fickle spirit, and they have become words of art in the interplay of politics and constitutionalism.
       Both in Roman law and Common law we observe two main groups of legal rules and institutions. One group is the result of political actions and of movements of law reform. Another set of rules and institutions has been gradually developed by the legal profession. "the spirit of the law," can not be applied to Roman Law. It would be misleading to speak of the spirit of the law in cases where the law was created by political reform. Here one must speak of the spirit of the political forces which found its outlet in the creation of legal rules.


[1]18 Green Bag 17 (1906) [ 9 pages, 17 to 25 ]
[2] Blackstone, " Commentaries," 139.
[3] Polloci, " Expansion of the Common Law," 32.
[4] Law Quarterly Rev. 161.
[5] Conference between King James I and the judges of England, 12 Rep. 63.
[6] Leviathan," Chap. XXVI.[7] 1 Emden, Selected Speeches on the Constitution (London, 1939) 67.[7]The Spirit of the Common Law by By Roscoe Pound
[8] 19 Howell, A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783 (London, 1816) 1386, 1408, hereinafter State Trials.




 楼主| 发表于 2/5/2018 00:54:30 | 显示全部楼层
本帖最后由 郭国汀 于 2/5/2018 14:55 编辑

        Lord Denning in 1949 believed that Britain had successfully 'balanced conflicting interests' in regard to the police's powers of arrest. He attributed this to the recruitment of professional police from 'young men of excellent character, from good homes, usually of sturdy country stock, who, without knowing it, have born in them a sense of fair play and calmness in emergency, and, withal, a respect for law and order.[1]
        In 1957, Lord MacDermott spoke of the criminal law and advocated 'a fair and proper balance between the parties,' and in a constitutional context, he urged 'a fair balance between those who have and those who are subject to' various forms of social power. This lord chief justice also maintained that 'there remains a remarkably wide and firm unanimity as to what is fair and just and good' -qualities that he attributed to the constitution's spirit. Prewar privilege, he felt, had been offset by 'the slogan "fair shares all around,"' and this was what had made effective the world war II rationing system. The law should, he declared, 'protect the public interest,' but it should do so 'with a fair regard for the other interests involved.[2] Even the king deserved a fair deal, George V had felt when he wrote to Asquith in 1913: 'Will it be wise, will it be fair to the sovereign as head of the army.[3]
       As the debates over the Commonwealth Immigrants Bill, 1968, members of both Lords and Commons often used the word, 'fair,' in one phrase after another, to show their contempt for this allegedly unfair legislation. Over a dozen times lords and commoners spoke of 'a fair and balanced policy,' and Mr Callaghan extolled 'the instinctive sense of fair play of the British people'
What is fair for one is fair for the other,' Sir C. Mott-Radclyffe responded, and then he added, 'do not let us have too much one-sided cant on this score.' Mr Nott pointed out 'the essential characteristics of the British nation, fair play, fair mindedness and good neighbourliness,' while in the House of Lords, 'fair' was bandied about even more freely as a criterion for the Bill's appraisal.[4]              Lord Brooke of Cumnor was for seeing that the Asians 'should all have fair opportunity in this land of ours,' and he went on to quote from the Home Secretary's statement in another place, 'in fairness to the people of this country and in the interests of equitable treatment for the citizens of the Commonwealth.'
       Lord Byers held it to be 'our duty to ensure that the laws we pass are fair to individual men and women ... and can be understood by them to be fair'; Lord Gridley might ask, 'Is this fair to our Asian friends?' and answer 'I submit that it is not'; and many another peer showed 'a desire to be fair' to either the Asians or the Britons. An epitome of fairness, in fact of the spirit of the constitution, was the Marquess of Hertford's summation of 'certain basic virtues':
       Mr Callaghan's repeated plea for 'a fair and balanced policy' was an appeal to reason, and also to the members' sense of the reasonable.[5]
       When Denning lectured on The Spirit of the Constitution in 1953, he considered that 'the peculiar genius of the British constitution lies in a third instinct, which is a practical instinct leading us to balance rights with duties, and powers with safeguards, so that neither rights nor powers shall be exceeded or abused.[6]     
The tradition of Anglo-Saxon jurisprudence was 'for the judges to regard themselves as impartial interpreters, holding the balance even between the claims on the one hand of the general government and on the other of the regional governments and between the citizen and the legislature or the executive.'
       The constitution is workable only because general understandings of reasonable fairness are accepted by all Parties.[7] Thus the positive values - the fair, the just, the good, and the moderate, the reasonable, the equitable, and more recently the equal - have given to the spirit of the constitution its continuity.
       The kind of balance that has been the guiding rule and controlling principle of constitutional governance is the just, the fair, and the reasonable. As the dominating value in the spirit of the constitution, balance has set the mood of British constitutionalism during the reigns of all six Georges and the last two queens.
       Lord Chief Justice MacDermott thought so in 1957 when he raised and answered questions about the components of the constitution's spirit: But what is the criterion of a just balance? And where is the assurance that the all-important word will hold its savour and continue to enshrine those standards of fairness and goodness and truth that it has gathered throughout our long history? ... On what then do we depend for an enduring just balance? On something, surely, that is not law at all; on something that resides neither in institutions nor past achievements, but in the hearts of individual people, in the common cognate, virtues of courage, kindliness and honesty, in the lustre of the spirit, in the faith and vision that nourishes and upholds all else. We are perhaps too shy about this ultimate rampart. Lawyers like to call the vision the Law of Nature, but I think they still more often mean the Law of God.[8] Or, perhaps, the spirit of the constitution.
       Why Fascism took root in certain countries and not in others. Often the theory is freely advanced that it is the Common law that preserved the Anglo-Saxon countries from this plague.[9]This theory needs no refutation; for it overlooks the fact that Switzerland, Sweden, Belgium and the Netherlands have remained democratic in spite of their Civil law tradition.
       Today deeds, wills, bonds, and contracts are full of redundant words of apparently magic significance. I say magic, because no layman can ever see the relation between the intention of the instrument and what it appears to say.[10]
      A second means to protect the individual against harmful action of the officers of the community is the law suit against the state. Both Roman[11] and Common law were extremely reluctant to admit this remedy. In Rome it was impossible to sue the populus Romanus, only suits against the imperial fiscus were admitted. According to Common law the sovereign can not be sued without his consent.
      The origin of the Roman jury in criminal trials there can be no doubt. It was created by legislative reform, first for the suits of provincials against their governors, later for most of the ordinary crimes.[12]  

    In theory both Roman and Common law strictly forbade the use of torture. In Rome the actual practice seems to have corresponded, at least in republican times, to this theory[13] whereas in England during the sixteenth and seventeenth centuries torture was only too often applied.[14]






[1] Denning, Freedom Under the Law (London, 1949), at 24.
[2] MacDermott, Protection from Power (1957), at 24, 4, 8, 119, 185.
[3] Nicolson, King George the Fifth (London, 1952), at 226.
[4] Part. Debates (Commons), 5th ser., vol. 759 (1968), 1242, 1491, 1547.
[5] Pan. Debates (Commons), 5th ser., vol. 759 (1968), 1242, 1258.
[6] Denning, Freedom under the Law, supra note 37, at 26, 6, 4, 31, 23; Denning, The Changing Law, supra note 45, at 106, 99, 122, 116, 3.
[7] Bailey, The British Party System (London, 1952), 196; Barker, Reflections on Government (Oxford, 1942), 58; MacDermott, supra note 38, at 8; Hart, supra note 35, at 155; 'Lord Butler on Cabinet Government' (A conversation with Norman Hunt), (1965), 74 The Listener, 408, 409 (16 September) ; Jennings, The British Constitution (3rd ed., 1950) 34-; Part. Debates (Lords), 5th ser., vol. 167 (1950), 332.
[8] MacDermott, supra note 38, at 195-6. The bishop of Southwell spoke in a similar vein in 1950 in his maiden speech in the House of Lords: '... the State is itself under the law, answerable to a higher law which no State made and which no State may presume to alter. Some jurists have called that the law of nature; some theologians have called it the law of God. But the whole philosophical tradition of Western Europe has taken for granted that the State has no unconditional prerogative; that it is answerable to a higher law.' Then the bishop noted, not without some alarm, 'the modern State tends more and more to claim that it is itself a source and creator of law, rather than its guardian and its interpreter. It seems to me that that is a most dangerous new doctrine which needs critical vigilance.' Parl. Debates (Lords), 5th ser., vol. 167 (1950), 354. Amery, supra note 31, at 15.
[9] Quirinus Breen, Oregon Law Review, XXIV (1944), 57 has collected a few examples. McIlwain presents the correct facts, but the title of his article in American Historical Review, XLIX (1943), 23: "The English Common Law Barrier Against Absolutism" is apt to be misinterpreted.3 Seminar (Jurist) 57 (1945) page, 57
[10] Glanville Williams, "Language and the Law," Law Quarterly Review, LXI (1945), 71, 78.
[11] Schulz, op. cit. 163.
[12] Democratic Spirit of the Roman Law and the Common Law by Robert Neuner 3 Seminar (Jurist) 57 (1945) p.62
[13] Schulz, op. cit., 207.

[14] Holdsworth, Hist. V, 185.


 楼主| 发表于 2/7/2018 14:30:25 | 显示全部楼层
Aristotle argues that man outside of political society is rendered beastlike.
     The proof that the state is a creation of nature and prior to the individual is that the indi-
     vidual, when isolated, is not self-sufficing; and therefore he is like a part in relation to the
     whole. But he who is unable to live in society, or who has no need because he is suffi-
     cient for himself, must be either a beast or a god: he is no part of a state.
ARISTOTLE, POLITICS, Book I, Part 11 (ca. 350 b.c.)

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