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Law, Politics, and the Jury
Published online by Cambridge University Press: 28 October 2011
Extract
I am grateful for the opportunity to clarify some parts of my argument that is afforded by the comments of Charles Donahue and Patrick Wormald. I should say at the outset that I am not seeking to propose a monocausal explanation of the origins of the generalized use of jury trial at common law, whether a “stirps” or a “smoking gun” (Donahue), or to exclude altogether the relevance of Anglo-Saxon practice or strong government (Wormald)—though I am pretty skeptical of the specific Carolingian-Norman lineage proposed by Brunner.
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- Copyright © the American Society for Legal History, Inc. 1999
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1. I do not mean to say that grand narrative theories are always inappropriate to the explanation of historical legal phenomena, merely that they do not seem to be appropriate to the history of jury trial.
2. Equally, of course, reliance on current custom and practice, “judgment of peers,” and so forth, continues after the emergence of professional legal doctrine.
3. I take this approach to be broadly consistent with that of Hudson, John in The Formation of the English Common Law (London: Longman, 1996).Google Scholar
4. This is obviously not quite the same thing as knowing and caring about the detail of Romano-canonical procedural law; but it is on the disputes, not the details, that my argument about motivations rests.