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A Day in Court at Home and Abroad

Published online by Cambridge University Press:  16 January 2009

Maurice Amos
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Extract

So far as the present writer is aware very little has been written upon Civil Procedure of a critical or analytical character since the days of JBentham. This deficiency appears to he observable even in the legal literature of the Continent, which is so much richer than our own in the application to legal problems of critical methods.

Type
Research Article
Information
The Cambridge Law Journal , Volume 2 , Issue 3 , November 1926 , pp. 340 - 349
Copyright
Copyright © Cambridge Law Journal and Contributors 1926

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References

* The Continent does not draw the hard and fast line that we do between law and legislation. In France, Italy and Germany every law student ie taught, by the very atmosphere he breathes, to look upon all law as a more or less successful essay in legislation.

* Theoretically at any rate, the judges on the Continent exercise a comparatively wide freedom in interpreting the substantive law, and have little discretion with regard to procedure, while in English speaking jurisdictions it is broadly speaking true to say that the balance inclines the opposite way.

† It is interesting to remark that whereas in France the Criminal procedure is inquisitorial, and the civil procedure is not, in England it is the other way about.

* The writer's practical experience of the Latin system of procedure has been acquired in a country which, both in leagues and in culture, is remote from the fountain head, and it is therefore possible that, in some respects, his judgment of the inadequacy of the Latin system to secure the orality of civil trials might require readjustment in the light of the practice at Paris or Rome.