Andrew's comment son the history of law require some correction. The common
law jury of the English middle ages was not a revival of whatever the Greeks
had, in the spirit of the Renaissance; it was a wholly native growth. Its
origins are a bit vexed; originally, it appears to have emerged from the
practice of having one's neighbors vouch for one's honesty, integrity, and
so forth, and only later did the jury come to have a fact-finding role--well
after Magna Carta! (no definite article: not THE MC, just MC_, And
cvertainly not in the Anglo-Saxon period. Finally, the common law was nota
product of "rough equality": it was a creation of the royal judiciary of
Henry II and Edward I, imposed by the King's Bench and the Court of Common
Pleas in a suuccessful attempt to grab power from the nobility and the
church, which had their own courts and judicial powers. It's definitely not
an intsnce of power from "below." --jks
In addition, while it is true that civil (Roman-style) law does not have
binding precedent, that does not mean that civilians (as civil lawyers are
calld) and civil law judges don't cite caselaw. They do, the way common
lawyers cite what we call "persuasive" authority, that is, anything not from
the higher court in one's own jurisdiction.
>
>The jury system, invented by the Greeks or some ancient predecessor,
>was revived in Britain long before William the Conqueror invaded the
>island. Taken by itself, the jury system limits the power of the
>sovereign. The basic tenet of the jury system is that representatives
>of the community decide the guilt or innocence, liability or
>non-liability of parties to a judicial proceeding.
>
>. . . .
>The stagnant Church Latin of medieval Engalnd that the courts
>rigorously enforced at the time forced lawyers to re-use old
>arguments. Thus began the capacity of prior legal outcomes to dictate
>the shape of future legal outcomes. This was an important innovation.
>In Roman law, for instance, precedent was not a recognized concern, and
>although some laws didn't change much over time, one would not have
>cited the case of Marcus Rex the Younger from the fifth year of the
>reign of Hadrian in one's own case, for it would not have had
>precedential value. The emergence of precedent allowed further
>certainty in legal decisions. With more certainty came more
>predictability, and commensurately, less risk.
>
>E
>
>
>
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