TEXT 3 the transformation of english legal science
Part 1
In the late seventeenth and early to mid-eighteenth centuries, the English legal system underwent fundamental changes in its method, that is, in the basic principles by which it operated. The new emphasis on the historicity of English law, that is, on the normative character of its historical development over generations and centuries, was manifested in new ways of systematizing it.
The most obvious methodological manifestation of the new historical jurisprudence was the emergence of the modern doctrine of precedent. Related methodological changes included the transformation of some of the historical forms of action into modern remedies for the protection of rights of property and for enforcement of obligations of contract, tort, and unjust enrichment. Closely connected both with the transformation of the forms of action and with the doctrine of precedent was the resort to legal fictions as a device for adapting older doctrines and procedures to new purposes.
Other changes in legal method were closely connected not only with the new emphasis on the historicity of law but also with new philosophical concepts of truth and justice that grew out of older jurisprudential theories of natural law and positivism. These included the increase in the independence of the jury as a trier of fact and law, the expansion of the rights of the accused in criminal trials, the introduction of the adversary system of presentation of evidence, and the establishment of new criteria of proof in civil and criminal cases.
Finally, the transformation was reflected in a new type of legal literature, namely, modern legal treatises analyzing and systematizing English law as a whole as well as some of its individual branches.
These topics—doctrine of precedent, forms of action, legal fictions, jury trial, rights of the accused, adversary system, evidence, treatises—may seem at first to be only a list of diverse features of the Anglo-American legal system. They may also be seen, however, and are treated in this chapter, not only as legal data but also as interlocking ways in which legal data were understood—that is, as important constituent parts of a coherent body of knowledge about law, and in that sense as elements not only of a legal method in the more technical sense but also of a legal science in the more theoretical sense. Indeed, in the sixteenth and seventeenth centuries the words "method" and "science" were often used interchangeably, bringing together mode of operation and theory.
TEXT 4 the transformation of english legal science
Part II
To speak of legal science, or a science of law, is to risk serious misunderstanding on the part of those who assume that the only true sciences are the natural sciences, and especially the "hard" natural sciences such as physics and chemistry. This is a contemporary Anglo-American usage; in most other languages, "science" (in German Wissenschaft, in French science, in Russian nauka) has retained its older, broader meaning of a coherent, systematic body of knowledge, combining particular facts with general principles, and is applied not only to the exact natural sciences but also to the less exact social and other humane sciences, including the science of law (Rechtswissenschaft, science de droit, pravovaia nauka).
There is, however, another more serious ambiguity in the application of the word "science" to law, namely, that legal science may refer not only to a body of knowledge about law generated by legal scholars (as the word "physics," for example, refers to a body of knowledge about matter and motion generated by physicists, or the word "geology" to a body of knowledge about the formation of the earth generated by geologists), but also to a body of knowledge generated by the law itself, defining its functions and the ways in which it operates. To say that a given system of law may itself contain, in that sense, a science is by no means to deny that (like medicine, for example) it is also, in its application, an art; it is only to say that principles laid down by its authors and practitioners—legislators, judges, administrators, and others—may expressly define its character, that such principles may be not only statements about law but also statements of law, and that in the Western legal tradition, at least, they are understood to constitute a coherent, systematic body of knowledge relating particular rules and decisions, particular modes of operation, to general legal theories. Even the simplest legal rules—for example, that a certain type of agreement is a legally binding contract, or that to kill another person intentionally and with malice aforethought constitutes the crime of murder—connote general principles of the legal system, such as the principle that contracts give rise to civil obligations enforceable by courts, the principle that some types of homicide are more severely punishable than others, and that certain kinds of distinctions are to be made between civil law and criminal law, et cetera; and these principles are officially declared to be necessary to the achievement of the purpose of law to promote justice and to maintain order. This is only to say that the science of law, like other social sciences, and like the science of language itself, differs from the natural sciences insofar as the participants in legal activities, that is, those who make or apply or administer or practice law, themselves articulate the nature of those activities, and their articulations are an essential part of the science itself. Indeed, in the Western legal tradition the legal actors themselves have for many centuries consciously ascribed to their own declarations of what they themselves are doing the qualities of a systematic, objective, verifiable body of knowledge, a meta-law by which the legal system itself may be analyzed and evaluated.