Science of Legal Method; Select Essays by Various Authors - Softcover
This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1917 edition. Excerpt: ... EDITORIAL PREFACE The greatest question of legal theory nowadays in the arena of professional debate, both in Europe and America, is this: What is the inherent nature of the judicial and the legislative functions, and of the difference between them? What respective parts do judge and legislator perform in the declaring or formulating of law? And what are the materials or data which they respectively employ in this process of law-declaring? In short, is there any inherent necessity for two distinct functionaries? And if there is, what are the respective limitations and requirements in their methods of reasoning? It might seem singular that such a fundamental debate should not have matured in professional thought, before the era of to-day. Can this tardiness be accounted for? Does political history account for it? We must recall the fact that even as late as the rise of the Frankish State, the preponderance of influence in the development of economic life and in the administration and evolution of private law on the Continent lay with the mark assemblies and other local jurisdictions, and that there could be no question, under these simpler conditions of social grouping, of a method, either of, or in, the law. We must remember, too, that under any of the regal systems obtaining in Europe before the French Revolution, the judges were invariably the king's appointees, and that the struggles to determine the location of legislative power were essentially, in their vital personal aspect, struggles between the parliamentary or popular personnel and the royal personnel. And we may well conclude that the latent judicial share in the law-declaring function would naturally not emerge as an issue; for the judiciary were subordinated to the king; and...
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- PublisherTheClassics.us
- Publication date2013
- ISBN 10 1230208399
- ISBN 13 9781230208398
- BindingPaperback
- Number of pages208
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