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IMAGINING THE LAW by Norman F. Cantor

IMAGINING THE LAW

Common Law and the Foundations of the American Legal System

By Norman F. Cantor

Pub Date: Oct. 1st, 1997
ISBN: 0-06-017194-4
Publisher: HarperCollins

 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.