Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions

Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions

Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions

Form and Substance in Anglo-American Law: A Comparative Study of Legal Reasoning, Legal Theory, and Legal Institutions

Synopsis

This book has a completely original theme, or set of themes. It offers first a new way of analyzing styles of legal reasoning--between more "formal" and more "substantive" styles--that is a major contribution to jurisprudence in its own right. The authors then go on to demonstrate in detail the differences in legal reasoning--and in the legal systems as a whole--between England and America, and suggest that the English is a much more "formal" system and the American a more "substantive." Finally, the book explores a wide range of cultural, institutional, and historical factors relating to the two legal systems.

Excerpt

This book is a contribution both to legal theory and to comparative studies. Its principal focus is on what we believe to be major differences in the nature of law and the general style of legal reasoning between England and America, which we term 'formal' and 'substantive' respectively. in the process of identifying and explaining these differences, we have found it necessary to construct a fairly elaborate theoretical apparatus about 'formality' as an attribute or property of legal systems, and we hope that this itself constitutes an original contribution to legal theory. If our conclusions about the differences between England and America are correct, we will also have made some contribution to comparative studies. the reader will understand these two systems better, having come to see in general ways what they are, and what they are not, in terms of form and substance.

Our qualifications lie in the fields of law and legal theory, and we have both studied the nature of law and legal reasoning in both countries at first hand for many years. But this book has 4required us to venture into many broad areas, including some regarded as appropriate fields of study for students of politics, government, sociology and other social sciences. in writing of such matters we have been aware that we ourselves lack some of the expertise of some social scientists, and so (for instance) we have not attempted any sophisticated statistical analyses of comparative data in the two countries we have been studying. But we believe that the differences we analyse in this book are primarily of a qualitative rather than a quantitative character anyway. So although our comparisons often take the form of suggesting that English law and legal reasoning are 'more formal' and the American 'more substantive', we do not purport to measure these differences, or indeed, suggest that they involve quantifiable attributes.

We must also add that there are more assertions in this book which are backed largely by our own judgment than we would have wished. Although in fact we cite here an immense range of literature, writings not hitherto so brought together, some of our assertions about the two legal systems and their different 'styles' depend simply on our own judgment . . .

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