In Francis Bacon&#39;s time, was common law much less rules-governed than civil law? In a paper on the legal inspiration of Francis Bacon's philosophical terms, it is argued that Bacon was more likely inspired by civil law rather than the common law, reflecting the fact that in his desire to “reduce and perfect” English law into a “Digest”—to be a Tribonian to James I’s Justinian—Bacon similarly drew his inspiration from the rule-governed civil law rather than the comparatively formless common law. Is this claim that common law was &quot;comparatively formless&quot; (i.e. much less rules-governed than civil law) in Bacon's time in accord with other legal historians' view of the [relative] law situation at the time? (Or was it just Bacon's own view? The paper is not exactly clear on that.)
In Bacon's time, common law countries had a greater proportion of legal rules articulated in case law precedents, and a small proportion of legal rules articulated in statutes passed by the legislature than it does today. Further, meaningful access to case law resources for litigants was much more difficult in Bacon's time than it is today. There were fewer secondary sources, few of those were comprehensive and organized at the top level by subject matter, you couldn't do word searches or key note searches, and even primary sources, consisting of statute books and case reporters, were limited in number, expensive, and hard to use. The private sector working together with civil society institutions would subsequently produce in American law, the digests and the &quot;restatements&quot; of the common law rules that Bacon sought (neither of which are themselves binding precedent). Characterizing the distinction as between a &quot;rule based&quot; system and a &quot;formless&quot; one is in my opinion not a description that furthers understanding. In many respects, the common law of Bacon's era has more black and white &quot;rules of law&quot; that could be applied umpire-like by judges arising out of an already substantial collection of case law precedents, than civil law countries whose statutory laws often stated &quot;standards&quot; that set for vague general principles without little guidance regarding how they are applied in particular circumstances (as opposed to more specific and unambiguous &quot;rules&quot;). Precedents provided clear guidance in common law systems in a lot of specific fact patterns (e.g. the working of the &quot;mailbox rule&quot; for contact formation), but civil codes lacked the same level of nitty gritty detail. In Europe, in contrast, lawyers had whatever late Roman Empire legal digests had considered, in summary form, but there was no elaboration or development of this in fact patterns present at the time the court was making decisions but not in Roman times. The Napoleonic Code and other major civil codes of Continental Europe hadn't been drafted at the time that Bacon lived. But what it did have what a subject-matter organized digest of the holdings of legal cases decided in the Roman Empire during Emperor Justinian's reign which were functionally treated as binding statutory authorities by the Latin speaking educated elite starting in the Renaissance and &quot;early modern&quot; period in European history which is known in legal circles as the process of the &quot;reception&quot; of Roman law after it had been dormant for centuries, a process that Britain did not participate in itself. The issue was not that the common law system of Bacon's time lacked legal rules, or that it was formless in the sense that there was not a clear, albeit, somewhat latent structure to those rules, although few people had access to the whole of the relevant authorities. Instead, what was missing in Bacon's time was a compact, comprehensive, statute-like, widely available authoritative statement of private law (the law governing the interaction of non-governmental parties) and criminal law, that could fit easily in a hefty volume or three (written in Latin) on a library bookshelf. This meant, in practice, in common law systems, that it was much harder to deal with legal questions (both transactional and litigation issues) without the assistance of a highly trained specialist lawyer who had spent years learning the system, while in civil law countries, an educated individual who was literate in Latin without other formal legal training had much more of a fighting chance of figuring out what the law required and said, reducing (but not eliminating by any means) the benefits associated with having highly trained legal counsel.
To the title question, yes, of course, Justices are subject to the law same as anyone else is (at least in theory; whether actual practice bears that out is another matter). Chief Justice Roberts (and the rest of SCOTUS, and a good chunk of the judiciary to boot, and then some) was a named defendant in the case Shao v. Roberts that was appealed to SCOTUS. The Justices all recused themselves rendering the court short of a quorum and leaving the prior appellate court decision to dismiss the case sua sponte in place. However, Justices essentially police themselves. As the head of the judicial branch they are largely independent of Congressional or Executive attempts to control how they go about their business. Recent calls to create a legal code of ethics for Justices exist because such a code perhaps cannot, and currently does not, exist under the current constitutional order. As such Justices make their own decisions on when to recuse (see my answer here for further details). Your hypothetical justice would do the same, and the court would proceed as it always does whether they do or don't.
In simple terms it was part of a wider effort to consolidate and simplify criminal law referred to as the Criminal Law Consolidation Acts 1861 (which were themselves revisions of the Peel Acts) Basically the sheer number of acts was causing administrative headaches - the courts and parliament were losing track of what was and wasn't in force. Since at least nominally ordinary English folk were supposed to know the law it was getting a bit ridiculous that the people whose literal job it was to make and adjudicate these laws weren't able to! In the words of James Bigg Esq: It would be superfluous to attempt to enumerate the causes which have led to the passing of these statutes : the circumstances which led to their occupying the prominent attention they have received were twofold: ist. The Court of Queen's Bench, a few years since, spent some time in solemnly considering the effect of an act which was afterwards found to have been repealed some years previously, but of which repeal both judges, counsel, solicitors, and all the parties concerned were, at the time, profoundly ignorant, and 2nd, Very nearly at the same period an act was formally passed by Parliament to repeal several acts which had been actually repealed about 20 years previously. As it is a legal axiom that every Englishman is presumed to know the laws of his country, and as the preposterous proceedings just mentioned cast a grave suspicion before the eyes of the public upon the accuracy and extent of the knowledge even of judges and legislators, it was felt that some means ought to be adopted to determine with clearness and precision what laws were really in force and what were abrogated : hence arose the question of “Statute Law Reform,” which for many years has received the intermittent attention of the legislature, and been handled by commissions of inquiry almost innumerable and uniformly expensive. PS: If you're interested in the general topic of how these acts came to be and the legal environment at the time it's well worth reading the whole &quot;Preface&quot; section of the book I linked to above.
No The importance of following precedent, and the principle of stare decisis were inherited by the early US legal system from the British Common Law system, and have been taken as part of the natural order of the legal system by US courts ever since. This extends even to a court overruling itself. US Courts are notoriously reluctant to overrule their past decisions, even when current court members agree, However they will do so from time to time. The US Supreme Court in particular will flatly overturn previous decisions, especially on Constitutional issues, when it thinks there is no other way to achieve a proper outcome, although it often prefers to distinguish the prior decision without actually overruling it. I think the fastest and most extreme case where the US Supreme Court overruled itself was that of West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the second flag-salute case. (This was also a particularly significant case.) This reversed Minersville School District v. Gobitis, 310 U.S. 586 (1940) a case on the exact same issue, only three years previously, and a vote of 8-1 on the first case became a vote of 6-3 the other way, with only one new Justice on the Court. Only Justice Frankfurter, the author of the fist decision, issued a dissenting opinion in the Barnette case, and no other Justice formally joined that opinion.
No. Indonesia Law uses Civil Law structures which use an Inquisitorial Trial. The chief difference is that in the United States (which has a Common Law Structure) the judge usually does not decide the case, but interprets the law (Trier of Law) and with a few exceptions, will determine the sentence once guilt is found. The Jury decides the case (Trier of Fact) and pronounces guilt (It is the right of the defense to request a Bench Trial, which gives the Judge both roles. The prosecution cannot object to this request). In a Civil Court, the big difference is that their is no Jury and the Judge has both roles (Trier of Law, and Trier of Fact). As the name suggests, rather than two sides fighting each other (adversarial), the two sides are answering questions posed to them by the Judge or usually a panel of Judges are used and the Judge may initiate further investigation in the evidence. The United States does use Inquisitional Trials from time to time, but they are often seen in misdemeanors, traffic courts, and small claims courts. The latter is a popular daytime TV genre (think Judge Judy) while misdemeanors and traffic court decisions are often time funny and make great Youtube videos. There are not many great Adversarial media as many throw out rules for time sake (real U.S. trials have many long boring periods during testimony) and story/drama sake. I would recommend "My Cousin Vinny" which was written by two lawyers who were fed up with Hollywood messing up how court room drama works and is hilarious to boot. When viewing either, take them with a grain of salt.
In legal systems descending from English law, the term equity refers to an aspect of those legal systems that has origins distinct from positive law and the traditional common-law writs. Equity traces its origin to the Court of Chancery. Much of what follows can be found in Snell's Equity. Equitable remedies (equitable relief) are those remedies available through rules and principles of equity, today applied by courts of unified jurisdiction. Some distinctions Equity as part of law: equity is certainly part of law in the sense that it is part of the legal system, applied by courts, and can result in equitable remedies. &quot;Equity in this sense has been a feature of many legal systems from ancient times&quot; (Snell's Equity, §1-002). Equity versus law: equity is distinct from &quot;law&quot; (or common law) in the sense that equitable remedies are meant to supplement &quot;legal rights.&quot; The common law and equity operated in their own areas of specialisation. Even in cases where common law and equitable rules touched on the same subject matter, the rationale of equitable intervention was not to conflict with the common law. The Chancellor's jurisdiction over the parties was in personam and enforceable by specific remedies, unlike those of the common law which were generally for the orders for the payment of money. (Snell's Equity, §1-012). Legal and equitable remedies: &quot;The division between legal and equitable remedies is an accident of history which cannot be explained in any other terms. No defining characteristic sets the remedies developed in Chancery, as a class, apart from the remedies developed by the common law courts.&quot; (Snell's Equity, § 14-001) History and the present A well-accepted unifying feature of &quot;equity&quot; and &quot;equitable remedies&quot; is their origin in the Court of Chancery of specialist equitable jurisdiction (Snell's Equity, §1-003). Even though today, this distinction in jurisdiction has been abolished by the Judicature Acts of 1873 and 1875, equity still means that body of law with its origins in Chancery. While equitable rules and principles have certainly continued to evolve, they all trace their pedigree to the jurisdiction of the Court of Chancery (Snell's Equity, § 1-004). Equitable doctrines have retained their distinctiveness as &quot;secondary&quot; to legal rights. They impose an overlay: that &quot;primary legal rights should be exercised consistenly with good conscience&quot; (Snell's Equity, § 1-033). This view from Canson Enterprises Ltd. v. Boughton &amp; Co., [1991] 3 SCR 534 highlights the messiness and debate about the confluence and remaining distinctiveness of equity and law: I am aware that reservations have been expressed in some quarters about this fusion or, perhaps more accurately, mingling of law and equity... But no case was brought to our attention where it has led to confusion, and there are many cases, some of which I have discussed, where it has made possible a just and reasonable result. It simply provides a general, but flexible, approach that allows for direct application of the experience and best features of both law and equity, whether the mode of redress (the cause of action or remedy) originates in one system or the other. There might be room for concern if one were indiscriminately attempting to meld the whole of the two systems. Equitable concepts like trusts, equitable estates and consequent equitable remedies must continue to exist apart, if not in isolation, from common law rules. But when one moves to fiduciary relationships and the law regarding misstatements, we have a situation where now the courts of common law, now the courts of equity moved forward to provide remedies where a person failed to meet the trust or confidence reposed in that person. There was throughout considerable overlap. In time the common law outstripped equity and the remedy of compensation became somewhat atrophied. Under these circumstances, why should it not borrow from the experience of the common law? Whether the courts refine the equitable tools such as the remedy of compensation, or follow the common law on its own terms, seems not particularly important where the same policy objective is sought. Equity prevails Even though equity has developed as supplemental and secondary to the common law, &quot;in a conflict between the two, equity would prevail&quot; (Snell's Equity, §1-010). For example, where a contract would be enforceable by its terms at common law, an equitable remedy developed called recission that allows for the &quot;extinction of a contract and the resotration of the parties to their original positions&quot; (Snell's Equity, § 15-001). This has been codified in some jurisdictions. See British Columbia's Law and Equity Act, s. 44: If rules of equity and law conflict, equity prevails 44 Generally in all matters not particularly mentioned in this Act in which there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity prevail. Where this distinction can matter This distinction can still matter. As just one example: &quot;Different rules of following and tracing have evolved at common law and in equity&quot; (Snell's Equity, § 30-052). See Citadel General Assurance Co. v. Lloyds Bank Canada, [1997] 3 SCR 805 at para. 58: In my view, a distinction should be made between the imposition of liability in “knowing receipt” cases and the availability of tracing orders at common law and in equity. Liability at common law is strict, flowing from the fact of receipt. Liability in “knowing receipt” cases is not strict; it depends not only on the fact of enrichment (i.e. receipt of trust property) but also on the unjust nature of that enrichment (i.e. the stranger’s knowledge of the breach of trust). A tracing order at common law, unlike a restitutionary remedy, is only available in respect of funds which have not lost their identity by becoming part of a mixed fund. Further, the imposition of liability as a constructive trustee is wider than a tracing order in equity. The former is not limited to the defence of purchaser without notice and “does not depend upon the recipient still having the property or its traceable proceeds”; see In re Montagu’s Settlement Trusts, supra, at p. 276. If a remedy is understood to be a legal right, then the innocent/wronged party is owed that right once the wrong is recognized by a court. However, if the remedy is understood to be equitable, no one ever has a claim as of right to the remedy, and it will always be subject to the discretion of the court to grant the remedy even if accepting the wrong underlying the claim. Some equitable remedies Wikipedia gives one list of equitable relief consistent with much of what is in Snell's Equity. Here I'll only list some of those that you'll most likely recognize: injunctions (Snell's Equity, § 18) specific performance (Snell's Equity, § 17) rescission (Snell's Equity, § 15) rectification (Snell's Equity, § 16) tracing (Snell's Equity, § 30-051) equitable estoppel (as a family of related doctrines), as distinct from common law estoppel (Snell's Equity, § 12) Maxims of equity Wikipedia also lists various maxims of equity also consistent with much of what is in Snell's Equity, § 5). I'll only highlight a few that are still widely relevant and known: &quot;He who comes into equity must come with clean hands&quot; &quot;Equity aids the vigilant and not the idolent&quot; (the principle behind laches) &quot;Equity looks on as done that which ought to be done&quot; (the principle behind equitable assignment)
That book provides advice on legal writing; it is not a source of rules for legal writing. Rather than repeatedly identifying themselves using their full name, parties customarily refer to themselves in the third person, e.g., &quot;The defendant refused to waive his Sixth Amendment right to a speedy trial.&quot; In practice, though, pro se litigants regularly refer to themselves in the first person, and there is no formal consequence for this.
See Harold J. Berman, &quot;The Origins of Historical Jurisprudence: Coke, Selden, Hale&quot; (1994) 103 Yale Law Journal 1651, p. 1691, n. 101: the translation of &quot;reason&quot; into &quot;reasonableness&quot; and the exaltation of &quot;common sense&quot; are English developments of the seventeenth century, to which Coke contributed. At p. 1718-19: Coke had said it is the nature of law to be reasonable, and that the test of reasonableness is its ability to withstand the test of time. See also S.E. Thorne, &quot;Dr. Bonham's Case&quot; (1938) 54 Law Quarterly Review 543, p. 543: To students of the origins of American constitutional law and theory no judicial utterance of Sir Edward Coke can surpass in interest and importance his so-called dictum in Dr. Bonham's case, decided in the Court of Common Pleas in 1610. It is widely regarded as foreshadowing not merely the power which American courts to-day exercise in the disallowance of statutes on the ground of their conflict with the constitution, but also that very test of 'reasonableness' which is the ultimate flowing of that power. This concept as a ground of review arose in the context of &quot;conflict between Parliament and the Crown over the nature and limits of prerogative and the common law&quot; (Michael Foran, &quot;The Constitutional Foundations of Reasonableness Review: Artificial Reason and Wrongful Discrimination&quot; (2022) 26:3 Edinburgh Law Review 295, p. 299). In one case, the Case of Prohibitions (1607) 12 Co. Rep. 63, 77 E.R. 1342 (K.B.), Coke repealed a judgment of King James I, on the basis that the judgment was not grounded in the common law. Coke said: &quot;causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law.&quot; This is in contrast to a view that Crown action would not be substantively reviewable. By defining reasonableness as something that can only be determined through the wisdom of judges, Coke was broadening the judicial power.