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"Common Law as the embodiment of ancient wisdom..." Watch

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    We've been given a quote from Roger Cotterrell which we have to prepare a debate for; it's proving to be rather an annoying one, and more to the point, this is my first debate, so I'm getting a bit nervous...

    The quote is:

    "Common Law as the embodiment of ancient wisdom is revealed by the judges, not created by them".

    Translated into a 'simpler' version, I got:

    "The law which is developed by judges, has already been created with legislation etc., and is merely revealed/used by the judges within cases."

    My group has to argue 'For', I was told that by specific area was to look into all of the doctrines, and to also look into legislation, and also to debunk the other side.

    The debunking, I'm not too worried about, it's the main bit I am.

    For doctrines: I understand that these are created though precedent in the common law. But this is created by judges, how can that be against this argument?

    For Legislation: Quite easy, just that parliament creates these doctrines, and they are used in courts.

    It's really the doctrine one I need help on, if anyone can give me some idea of how it actually supports the argument, and even citing cases, I shall open a lemonade stand and brand it with your name.
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    Think you've slightly missed the point, the reference is to "ancient wisdom" not legislation, "ancient wisdom" doesn't come from parliament

    Think this question is more referring to the "natural law vs. legal postivism" debate. Natural lawyers say law is about achieving justice and justice is inherent so common law is just about articulating inherent principles of morality, legal positivists say the law is what it is and is therefore just a set of rules created by judges.
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    [QUOTE=Infuse;28811935]We've been given a quote from Roger Cotterrell which we have to prepare a debate for; it's proving to be rather an annoying one, and more to the point, this is my first debate, so I'm getting a bit nervous...

    The quote is:

    "Common Law as the embodiment of ancient wisdom is revealed by the judges, not created by them".

    Translated into a 'simpler' version, I got:

    "The law which is developed by judges, has already been created with legislation etc., and is merely revealed/used by the judges within cases."

    I would have thought that instead of "created with legislation" you could consider "created by custom"

    Is not common law merely the embodiment of custom and practice?
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    To me that throws up three questions.
    1) Is common law really the embodiment of ancient wisdom? I would have thought the monarchy and church were the authority for ancient wisdom in their time. Historically isn't common law just the distilled political influence of these authorities.
    2) What does the author mean by ancient wisdom? Natural law, canon law, custom and legislation have all been around for a long time. Ancient implies natural law but that's arguable.
    3) To what extent do judges create law or simply reveal it. Probably the juiciest part of the question. Lord Chief Justice Coke probably thought that he was a law creator when he said "in many cases, the common law will controul Acts of Parliament...". What's the theory and what's the reality.

    Could try reading that extract, apparently it's in 'The Politics of Jurisprudence', starting with "Can Common Law Thought Explain Legal Development".
 
 
 
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