A Short History of Western Legal Theory

A Short History of Western Legal Theory

A Short History of Western Legal Theory

A Short History of Western Legal Theory


This unique publication outlines the development of legal theory from pre-Roman times to the twentieth century. It aims to relate the evolution of legal theory to parallel developments in political history, and accordingly offers the reader an account of relevant contemporaneous political,religious, and economic events. Each chapter commences with a general historical background for the relevant period, and discusses how political events and political and legal theory are both related to one another and occasionally influence one another. No other English publication aims to anchor legal theory to contemporary general history in this way, shunning the more conventional approach to legal theory via the study of 'traditions' or 'schools', and it is hoped that this study will provide a much-needed basic text for students ofjurisprudence, legal theory and politics.


'"Man is born free, yet everywhere he is in chains": words like these [of Rousseau] gave what might be called the plain chant of natural rights, as Locke had intoned them, a polyphonic charm.'

The tone of the passage itself is unmistakable: only John Kelly could have written a sentence at once so graceful and so resonant, so replete with learning and so refined in its choice of words. He conducted a lifelong love affair with the English language (among others); he may sometimes have felt with Auden that:

Time that is intolerant
Of the brave and innocent.
And indifferent in a week
To a beautiful physique,
Worships language and forgives
Everyone by whom it lives.

But only sometimes, because he also knew the inadequacy of language itself as a vehicle of feeling and we can glimpse as well in the sentence his passion for music, above all when it was at its most complex and many layered, as in the masterpieces of his beloved J. S. Bach.

All this may seem far away from the ineluctable and mighty issues at the heart of Western jurisprudence with which he wrestled in this, his last book. Yet as he brings before us with his own incomparable gifts of exposition the intellectual struggles of these great men, of Plato and Montesquieu, of Aquinas and Voltaire, of Locke and Bentham, we are repeatedly made conscious by him of how much of all of this is a battle with words.

He had indeed edged away with distaste from the verbal contortions typical of some contemporary Anglo-American jurisprudence and only a severe sense of duty can have compelled him, in the last chapter of this book, to follow some of the writers concerned on to what he describes with characteristic acerbity as 'a sort of course in mental and moral athletics, sweating around the . . .

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