Imagining the Law: Common Law and the Foundations of the American Legal System.
Reviewed by Jonathan Wall
Norman Cantor, professor of history and sociology at New York University, has written a book that focuses on the development of the common law and the people who shaped it. Implicit throughout is the impact of the common law's development on current American law.
The term "common law" came into use at the end of the 13th century and might have initially referred to the law "common to the whole realm." Black's Law Dictionary describes it as "that body of law, distinguished from statutory law, that derives its authority from customs of antiquity and court opinions recognizing those customs." Cantor suggests that the term was coined merely to distinguish secular law from the Roman Catholic Church's canon law.
Originally, the common law dealt almost exclusively with property. Under the feudal system, the lord of the manor settled arguments between serfs and meted out punishments for crimes. With the demise of the feudal system, courts began to take up criminal matters. In succeeding generations, layers of contract and tort law were added to the common law through judicial review without the aid of legislation.
Most interesting in this history is the development of the jury system. Initially, juries were used to settle land disputes. The shire reeve--a county official later known as the sheriff--chose jurors for their familiarity with the tract in question. Jurors were expected to use their factual knowledge to decide a case and, if questions arose, to go out and find the answers on their own.
Before long, lawyers began using procedural rules to frame the issues for the jury in away that would secure a favorable outcome for the client. It became more expedient to provide all relevant--as shaped by the lawyers' arguments--information to the juries at trial.
For criminal cases, courts empaneled "blue ribbon" juries consisting of property owners or men of solid social standing. Defendants, who were most often from the lower classes, were more likely to be convicted by these upper class jurors, who rarely knew the defendant or his or her family. Interestingly, these types of juries were used in the United States until the decade of the 1950s.
Imagining the Law reminds us that plea bargaining has been used consistently since Roman times, and jury nullification dates to the 1300s. When Parliament became frustrated with its impotence to stop crime in the 1700s, it passed severe legislation elevating petty crime to hanging felonies. Juries refused to convict, much the way a jury today might refuse to send a youthful drug offender to jail for life without parole.
Cantor notes that the gentry class had a large role in shaping the common law. Kings and aristocrats had little need for laws that protected rights and property. But the upper middle classes benefited greatly from the development of the rule of law.
When English common law was taking shape, most lawyers were members of gentry families and understood that class's concerns. They guided the law to facilitate commerce--through land transfers during the feudal system breakdown and labor exploitation during the rise of the mercantile class and the Industrial Revolution.
After the American Revolution, the activist torch of the common law was passed. In the United States, the use of juries and judge-made law flourished.
At the same time, common law began to lose sway in England. Shortly before U.S. Supreme Court Justice John Marshall wrote the landmark Marbury v. Madison decision, England was recognizing the supremacy of Parliament over the judiciary and, thus, the inability of a court to declare parliamentary law illegal.
Cantor warns in the preface that the book is not intended for lawyers, and some readers may find it too academic. Other readers may be turned off by the author's long-winded style--Imagining the Law is filled with convoluted one-sentence paragraphs. Also, without analysis, the author adopts the conclusions of corporate media that juries are not effective dispensers of justice.
But given a chance, this book has much to offer. Those who stay with it will gain a historical understanding of the fluidity and adaptability of our common law. This adds a deep perspective to current discussions on the societal role of the common law and our court system.
Jonathan Wall, a former contributing editor to TRIAL, is an associate with Clark & Wharton in Greensboro, North Carolina.
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|Article Type:||Book Review|
|Date:||Mar 1, 1998|
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