Activist Judges of the Early Fourteenth Century

Activist Judges of the Early Fourteenth Century

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Activist Judges of the Early Fourteenth Century

By Thomas Lund

Utah Law Review, Vol 2008, No 2

Abstract: This article examines the liberal bent of the early fourteenth century judiciary, in particular the decisions of the great Chief Justice of that era, William Bereford. As the dominant figure within the formative years of the early common law, Chief Justice Bereford played a role parallel to that of Chief Justice Marshall in early American law. Bereford ruled the Court of Common Pleas at a time when French speaking secular lawyers displaced Latin speaking clerics. T.F.T. Plucknett’s book Statutes and their Interpretation in the First Half of the Fourteenth Century investigates liberal statutory interpretation during the important years of transition. This study complements Plucknett’s both by including common law cases, and by emphasizing legal reasoning rather than doctrine. Plucknett approaches the materials with a historian’s focus In contrast, this Article takes an ant’s view of the terrain, and attempts to put the modern reader into the shoes of a medieval lawyer.

The early fourteenth-century lawyer was a practitioner who had little interest in the big picture. The historian will “misunderstand it all if he endows the lawyers who took part with vision…or attributes to them any intention beyond getting today’s client out of his difficulty.” In the mid-thirteenth century, Bracton’s brilliant Latin study explained the law of England through an overarching theory derived from Roman law. A few decades later French speaking practitioners ignored his analysis, just as today the mouthpiece in the trenches muddles forward without a glance at Dworkin or Rawls. Indeed, Plunknet observed that “[n]o one who reads only the Year Books would ever suspect that Bracton had lived and written.”

Watch the video: Original Intent vs. Judicial Activism (August 2022).