Text 5 the transformation of english legal science part III

On the one hand, the rules and principles of English law of the late seventeenth and early to mid-eighteenth centuries may thus be said to have constituted its internal science. The new treatise literature of that period, on the other hand, generated by legal scholars, not only recapitulated the internal legal science but also analyzed, classified, systematized, and evaluated English legal institutions according to criteria drawn partly from within but also partly from outside those institutions, and thus may be said to have constituted an external science of English law. The frequent references to "legal science" made in that literature did not, however, expressly distinguish between its internal and its external aspects. William Blackstone, for example, in initiating in 1753 the first course on English law ever offered in an English university, said that "law is to be considered not only as a matter of practice but as a rational science," grounded on "general principles" inherent in the law itself, and that it is the task of the legal scholar to discern those principles. At the same time, Blackstone followed a method of analysis and synthesis of English law that had been introduced three generations earlier by Matthew Hale, a method that was drawn partly from philosophy, theology, and the natural sciences, as well as from the entire body of Western legal scholarship. Black-stone referred indirectly to that external aspect of the science of law in writing that the teaching of English legal science had been "committed to his charge to be cultivated, methodized, and explained," and that English law should be studied "in a solid, scientific method." Indeed, if only the internal mode of operation of the English legal system were to be taught, without external theoretical analysis and evaluation, it would hardly make sense to teach it in a university course designed, as he said, as part of the general education of "every gentleman and scholar."

It must also be noted that the authors of the first treatises on English law were not professors but judges and practicing lawyers, and their treatises in fact strongly affected the fundamental structural and institutional changes in the English legal system that took place in the late seventeenth and early to mid-eighteenth centuries. Indeed, a principal source of the differences between the new English legal theory and the legal theory that had prevailed previously in the West was the fact that the earlier legal theory was primarily professorial in its origin and nature, whereas the new English legal theory was primarily judicial in its origin and nature. The English Revolution exalted the role of the legal profession as guardian not only of the positive law but also of legal science. This fact, too, contributed to the integration of the internal and external aspects of English legal science— its method in the narrower sense and its theory in the broader sense.

Text 6 judges part I

We in the common law world know what a judge is. He is a culture hero, even something of a father figure. Many of the great names of the common law are those of judges: Coke, Mansfield, Marshall, Story, Holmes, Brandeis, Cardozo. We know that our legal tradition was originally created and has grown and developed in the hands of judges, reasoning closely from case to case and building a body of law that binds subsequent judges, through the doctrine of stare decisis, to decide similar cases similarly. We know that there is an abundance of legislation in force, and we recognize that there is a legislative function. But to us the common law means the law created and moulded by the judges, and we still think (often quite inaccurately) of legislation as serving a kind of supplementary function. We are accustomed, in the common law world, to judicial review of administrative action, and in the United States the power of judges to hold legislation invalid If unconstitutional is accepted without serious question. We know that our judges exercise very broad interpretative powers, even where the applicable statute or administrative action is found to be legally valid. We do not like to use such dra­matic phrases as "judicial supremacy," but when pushed to it we admit that this is a fair description of the common law system, particularly in the United States.

We also know where our judges come from. We know that they attend law school and then have successful careers either in private practice or in government, frequently as district attorneys. They are appointed or elected to judicial positions on the basis of a variety of factors, including success in practice, their reputation among their fellow lawyers, and political influence. Appointment or election to the bench comes as a kind of crowning achievement relatively late in life. It is a form of recognition that brings respect and prestige. The judge is well paid, and if he is among the higher judicial echelons, he will have secretaries and research assistants. If he sits on the highest court of a state or is high in the federal judiciary, his name may be a household word. His opinions will be discussed in the newspapers and dissected and criticized in the legal periodicals. He is a very important person.