Imagining the Law: Common Law and the Foundations of the American Legal System

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9780060171940: Imagining the Law: Common Law and the Foundations of the American Legal System

At a time when the role of the legal profession, the jury system and other key aspects of American law are under much dispute, Imagining the Law provides a historical perspective on these critical public issues. Historian Norman Cantor explains how and why common law developed out of Roman law, in response to the needs and assumptions of English society and culture from 1000 to 1780, and how it became the basis of the American legal system.

Professor Cantor shows that many of the current debates about the jury trial, the adversarial model and other parts of our legal system stem from this history. He highlights the minds and personalities of prominent judicial leaders, from Cicero and Justinian in the ancient world, through Glanville and Bracton in the Middle Ages, to Coke, Blackstone and Bentham in later centuries. A concluding chapter relates the social and cultural history of common law to the American system of Supreme Court Justices John Marshall and Oliver Wendell Holmes and to the legal profession in the United States today.

Imagining the Law is authoritatively based on the extensive amount of recent research and writing in the field of legal history, and on Professor Cantor's reading of thousands of court cases. It is the first book to examine legal history in a cultural and sociological context and thus illuminates one of our most important institutions in a whole new way.

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About the Author:

Norman Cantor is a professor of history and sociology at New York University and adjunct professor of legal history at the NYU School of Law. He is the author of twelve books. He lives in New York City.

From Kirkus Reviews:

A well-researched but deliberately conversational look at the ``social, political, and cultural factors'' behind the origins and development of common law. In his approach to legal history, Cantor (Medieval Lives, 1994, etc.) draws on an idea from sociology: A developing system reaches a point at which ``compelling ideas and social structures attain a centrality of power that is expressed in a deep structure.'' He says that our legal system's deep structure emerged during the 12th century and was largely in place by the time of Henry VIII. One notable feature of that development was the jury of verdict; some early defendants agreed to it only because of judges' trickery or pressure--occasionally literal (stones were piled on the defendant's chest until he died or accepted the jury trial). Another feature was that the gentry shaped and exploited common law to serve their interests, particularly their interest in land. On the other hand, courts became willing to consider oral contracts and personal actions, such as liability--a change that eventually put legal remedy into the hands of the lower classes. Cantor's narrative is most engaging when he focuses on people, whether as social classes or individuals (e.g., his portrait of eminent lawyer Sir Edward Coke scrapping with King James I). At times, Cantor indulges in moments not so much of controversy as of baiting, as when discussing how 19th-century courts relaxed liability standards and took the heat off industrialists whose machines could mangle and kill workers. But hey, says Cantor, Germany and Japan, which industrialized with less brutal side effects, started terrible wars. That he conceives of no third possibility suggests at least a failure of imagination. Whether or not one agrees with Cantor's take on specifics, he persuasively argues that common law's roots are so deeply embedded in our culture that even a new Ice Age might not kill them. -- Copyright 1997, Kirkus Associates, LP. All rights reserved.

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