Historical Jurisprudence; An Introduction to the Systematic Study of the Development of Law
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Inas- much as it was the duty of the magistrate to grant or deny an action, he had enormous power of control over the law; for rights are rights in law only so far as they can be enforced by process of law. This control of the praetor over actions was twofold. He could refuse an action, when, according to the letter of the law, one was allowable, or he could grant an action when none was provided. He 222 HISTORICAL JURISPRUDENCE could further devise entirely new forms of action. All this was di...stinctly seen as the formulary system took the place of the older actions. " In legis actio the legislators and the litigants seem alone to occupy the scene. The prsetor is only present as master of the ceremonies, and even as such can only utter sentences which the legislator has previously dictated. In the formulary system the praetor appears with much larger attributions ; he seems to have stepped in front of the legislator and has taken much of the initiative from the suitors." ^ In the case of the newly devised forms of action, the prsetor, except so far as he abstained from inserting in the formula certain phrases — such as the almost sacred term oportere — cer- tainly exercised the functions of a legislator.
What to read after Historical Jurisprudence; An Introduction to the Systematic Study of the Development of Law?
You can find similar books in the "Read Also" column, or choose other free books by Lee, Guy Carleton, 1862-1936 to read onlineMoreLess
To quickly assess the difficulty of the text, read a short excerpt:
Inas- much as it was the duty of the magistrate to grant or deny an action, he had enormous power of control over the law; for rights are rights in law only so far as they can be enforced by process of law. This control of the praetor over actions was twofold. He could refuse an action, when, according to the letter of the law, one was allowable, or he could grant an action when none was provided. He 222 HISTORICAL JURISPRUDENCE could further devise entirely new forms of action. All this was di...stinctly seen as the formulary system took the place of the older actions. " In legis actio the legislators and the litigants seem alone to occupy the scene. The prsetor is only present as master of the ceremonies, and even as such can only utter sentences which the legislator has previously dictated. In the formulary system the praetor appears with much larger attributions ; he seems to have stepped in front of the legislator and has taken much of the initiative from the suitors." ^ In the case of the newly devised forms of action, the prsetor, except so far as he abstained from inserting in the formula certain phrases — such as the almost sacred term oportere — cer- tainly exercised the functions of a legislator.
What to read after Historical Jurisprudence; An Introduction to the Systematic Study of the Development of Law?
You can find similar books in the "Read Also" column, or choose other free books by Lee, Guy Carleton, 1862-1936 to read onlineMoreLess
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