Synopses & Reviews
Purchase of this book includes free trial access to www.million-books.com where you can read more than a million books for free. This is an OCR edition with typos. Excerpt from book: INTRODUCTION TO THE ENGLISH VERSION When Sir James Stephen spoke, not without praise, of the absence of general theories good or bad which distinguished the law of England, he stated a half-truth only. It is true that in Anglo-American law, more than in other systems, juristic theories come after lawyer and judge have dealt with concrete cases and have in some measure learned how to dispose of them. But it is also true that such theories go before our law-making, as they precede law-making elsewhere. They are developed consciously or subconsciously before the legislator, or under our system of case law the judge, formulates the rules by which future causes are to be governed. Hence we have a general theory of crime and of punishment in our Anglo-American common law and in our penal codes; and, although we are coming to have legislation here and there proceeding upon other theories, the latter fits with difficulty into a system of legislation and of judicial decision in which that general theory is consistently developed. Moreover, thinking men have agreed long ago that it is not a good one. For the theory of our common law and of our penal codes is the classical theory. This theory, intrenched in our bills of rights and in common-law juristic thinking, as well as formulated in our penal codes and the decisions construing them, is to-day a formidable obstacle in the way of modern legislation, as the conflict over construction of statutes requiring action at one's peril, the fate of the statute of Washington as to the defense ofinsanity, and the constitutional difficulties encountered by probation laws abundantly bear witness. Not many years ago a learned Supreme Court released a child from a reformatory on the ground that a reformatory was a prison, that commitment thereto w...
Synopsis
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