Law op Liability for Civil Injuries. I HAVE endeavoured to make this book useful to more than. Further, a great part of what I have. These are of lesser importance, of g r e a t e r d i f f i c u l t y , o r of a controversial or historical character, a n d are not essential to the continuity of the exposition. May
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References are given to both the second and the seventh editions, unless otherwise stated. The second edition coincides with Salmond's arrival at Victoria and is more generally available than the first edition. The seventh edition is one of the last written by Salmond himself. This article offers one response to that question, by considering Salmond in terms of a conduct of life, or at least the conduct of life organised around the office and persona of the jurist.
Questions of inheritance and conduct of life are rarely asked of Salmond's treatise on jurisprudence. After all, Salmond has been claimed as a colonial son of the modern schools of positivism and analytical jurisprudence and neither of these schools is much noted for its concern with inheritance, justice or the conduct of life.
However, this view perhaps relies too heavily on philosophical polemics that dispute the claims of jurisprudence in the court of metaphysical and critical reason or believe too strongly in the claims of a legal science that can produce meaning without institutional place or responsibility. Neither account can be uncritically accepted. In this article, however, Salmond's jurisprudence is re-cast in the language of office, persona and role.
At the risk of anachronism, this returns jurisprudence to a genre of analysis that has formed a large part of the discourse of the legal tradition. On the one hand it draws on a Ciceronian tradition of legal discourse that considers the duties and responsibilities of the jurist both in terms of the character and prudence of the jurist and in terms of a training in legal science.
On the other hand, office is also the central feature of the institutional arrangement of mediaeval and early modern government in Europe. The brief of this article is narrow. It seeks to show how questions of office continue to shape Salmond's jurisprudence. It does so largely as a matter of intellectual history.
Focusing on the office and persona provides a point of organisation which more firmly links 19th century jurisprudence to its history, rather than with present debates.
In particular, the focus on the office and persona of the jurist, rather than the doctrinal content of Salmond's work, allows both an examination of the activity that establishes the discipline of writing jurisprudence and of the particular way in which Salmond elaborates the office and persona of the jurist. To do this Salmond's Jurisprudence — and by analogy, English analytical jurisprudence — is considered as, in part at least, elaborating a training for office.
In order to draw out the questions of conduct that Salmond addresses, this article has been divided into four parts. The first three re-consider aspects of the ways in which Salmond's jurisprudence opens up an account of office and the persona of the jurist, and the last provides some concluding comments by way of commentary.
The first part briefly looks at the concepts of office and persona. The second part then considers the office of the jurist as understood in terms of the genres of legal writing through which Salmond develops his account of legal science. The third part considers some of the uses to which the persona of the jurist is put in the conceptual ordering of what law is and the relations between the administration of justice, civil law and the State. The final part concludes with some brief comments on the contemporary inheritance of Salmond's conduct of the life of the law.
Ernst Kantorowicz's studies of the Office of the Crown in the King's Two Bodies provided one of the influential accounts of office.
The office of King was not an isolated example. More generally, mediaeval and early modern government, church, and public life were structured through a broad network of offices. The oath often defined role: it provided the responsibilities of office, as well as the liberties, and hence, a means to assess conduct.
From the mid fourteenth century, the judiciary swore to do "equal law and execution of right to all … rich or poor" and "not to take fee nor robe of any man … [nor] gift or reward by themselves". The modern oath echoes these concerns. For judges, the limits and bounds of the office is the administration of the law equally and impartially to all. If office is the status, then the persona is the manifestation or expression of office — the way a person fills that office.
For Condren "persona is an authentic type carried by a physical body": for Kantorowicz the natural body of the King. The persona carries the qualities which best suit the purpose and recognise the limits of office. Here the persona lies in responsibilities to audience. The question of how the persona sees those responsibilities is bound to the purposes and limits of office. While in the 19th century there are clearly a number of judicial and other offices of government, it is not so simple to argue that there is a distinct office of jurist.
However, the language of office and jurist could still be found in, for example, the preface to Pound's Interpretations of Legal History, where it was noted that "Dr Pound's enlightened conception of the jurist's office is, again, one of the valuable contributions which he makes to juridical science".
The author continues: "to [Pound] the jurist is — or at least ought to be — a creative and moulding force in legal progress". It was certainly not one invested by oath. However, jurisprudence in 19th century England, dominions and colonies, as in other times and places, produced its own accounts, often competing and rival accounts, of how to conduct oneself in relation to law.
Its commentaries, digests, elements, essays, institutes and theories were engaged in a variety of tasks of instruction, scientific organisation, reform and polemic. Salmond's Jurisprudence: or the Theory of the Law is no different for all that it is presented as an analytical science of the first principles of law. In par,t then, the first question is how Salmond understood the office, with all its responsibilities and duties, as well as its limits, of the jurist.
First, the office of jurist is an office of State civis. Second, the office is practiced through legal science. Here we link the office of the jurist to the forms of legal science by suggesting that the genres of jurisprudence delimit an office as much as a method of organisation and exposition of legal materials. For Salmond, legal science instantiates the purposes and limits of the office of jurist, as just as much as it does the purposes and limits of the law itself.
Jurisprudence enables law to be viewed and practiced as a science rather than as a "repellent mystery" — repellent either because it is metaphysical or because it is a morass of undigested case law. A Office and the Administration Of Justice Compared to the office of the judge, that of the jurist in common law jurisdictions has always been difficult to place.
As some have pointed out, in comparison to the continental civilian tradition, the status of the common law jurist is less clearly defined. One result is that in the 19th century there is no clearly delimited office of jurist with associated responsibilities and obligations. To ask what is the institution and audience of the jurist helps to identify some of the situations in which the jurist works. However it is also necessary to ask this in order to frame the issues in terms of the responsibilities or duties of the jurist.
Like the social office of the philosopher or actor, the office of jurist is general and can be occupied in a number of different ways. As a lawyer Salmond himself had a number of roles: jurist as university person; jurist as educator; jurist as State functionary; jurist as legal advisor. Not all aspects of the office can be traced here.
All, however, are concerned with the administration of justice and with the administration of the justice of the State. For Salmond, the jurisdiction of law is the administration of justice.
Salmond locates the fundamental conception of law in the State, rather than the sovereign. The State role is that of the administration of justice. His definition of law is "the body of principles recognised and applied by the State in the administration of justice".
In fact, not only is law subsequent to the administration of justice, it is "secondary and unessential". For Salmond, the primary function of the State is to "maintain right, to uphold justice, to protect rights, to redress wrongs. Judges cannot follow their own conscience, they have no free will or discretion.
There is no private judgment: 19 The law is the wisdom and justice of the organised commonwealth, formulated for the authoritative direction of those to whom the commonwealth had delegated its judicial functions.
What a litigant obtains in the tribunals of a modern and civilised state is doubtless justice according to law, but it is essentially and primarily justice and not law.
If this situation marks the office of the judge, then a first take on office for the jurist might be found in their contribution to the development of a legal system through the "progressive substitution of rigid pre-established principles for individual judgment. B Institutions and Audiences One audience then for the jurist is the judge. The relationship in Salmond's work of the social office of jurist to that of the instituted office of judge is never clearly articulated.
There is clearly some movement between the two. The office of the judge is not assimilated to that of the jurist. However, part of being a judge is to be a jurist and in some cases vise versa. In Jurisprudence, Salmond attributes priority to the office of judge in matters of judgment. It is, after all, the judge who makes law: "[i]n practice, if not in theory, the common law of England has been created by the decisions of English judges".
While on the continent or in Roman law the textbook and the law reports "are both instruments for the persuasion of judges", in English law, the rule of precedent gives authority to the reports and hence the judges. However, by , and "The Literature of Law", the relationship seems to have settled into a reasonably orthodox reciprocal relationship: judges 'provide' precedents and someone must interpret, clarify and systematise.
He notes the sheer volume of literature, particularly in the United States, and the exhaustive expounding in works of even comparatively small branches of the law. He concludes that "it is not too much to say that the position will soon become intolerable". That task could only be undertaken by the legal profession itself: bar associations, law schools, universities of both the US and Britain.
These are the "experts" of the law, required to interpret and lay down precedent as determined by the judges. What was needed was the abstraction of general principles from the laborious detail of the law books. Only then could the law become 'scientific'. In this respect, it is the jurist as legal scientist who represents the meaning of the law. It is interesting that as a lawyer, writer and educator, Salmond seems to attribute more priority to the office of judge than he attributes many years later when he has become a judge himself.
Legal science and the role of the legal scientist gave an expertise to the office of jurist which was different from that of the office of judge. Legal science can be seen as a training for the office of jurist. Conversely, of course, office gave shape to legal science. There is little doubt that for Salmond jurisprudence, an emergent university discipline in common law jurisdictions, forms a central part of his conception of the office of jurist.
Jurisprudence by john Salmond
Salmond on jurisprudence.