Precedent in English and Continental Law
![handle is hein.journals/lqr50 and id is 78 raw text is: PRECEDENT IN ENGLISH AND CONTINENTAL
LAW.'
p ERHAPS no problem is so typical of, or has been considered
at such length in modern legal philosophy, as the proper
nature and scope of the judicial function. In France, the
conflict between the traditional school which favours inter-
pretation by the ' logique judiciaire ' and the more recent school
supporting ' libre recherche scientifique ' has given rise to a
large body of polemical literature of peculiar interest.2 In
Germany, an even more embittered struggle has been fought
between the school supporting 'die freie Rechtsfindung und
freie Rechtswissenschaft' and its conservative opponents.' In
America, under the leadership of the late Professor Gray, of
Dean Pound of the Harvard Law School, and of Mr. Justice
Holmes and Mr. Justice Cardozo of the United States Supreme
Court, the interest in the judicial function and its relation to
the nature of law has eclipsed all other questions of legal
philosophy to such an extent that the traditional analytical
method of Anglo-American legal literature has, to a great
extent, gone out of favour.4 In England, also, modern writers
have made important contributions to this subject; in particular,
two of my predecessors in this Chair-Sir Frederick Pollock '
and Professor C. K. Allen '-and Sir John Salmond, who intro-
duced Gray's theory to English readers in his Jurisprudence.
Nor must I fail to mention two recent works of interest:-
Dr. Ellis Lewis's essays on the History of Judicial Precedent '
and Mr. Fifoot's English Law and its Background.' I feel that
I am, therefore, in safe company when I choose as the subject
for my inaugural lecture one feature of the judicial process
The publication of this Inaugural Lecture delivered before the University of
Oxford on 'May 6, 1932, has been delayed owing to lack of available space. A
few minor alterations have been made in it.
'-Cf. Georges Gurvitch, Le Temps Prdsent et lIdde du Droit Social, 1932,
3rd section ch. 1 and 2.
' Modern Legal Philosophy Series: Vol. IX, Select Essays in Modem Legal
Philosophy.
' W. N. Hohfeld's Fundamental Legal Conceptions, 19-23, and Albert Kocourek's
An Introduction to the Science of Law, 1930, are exceptions to this.
' See in particular his A First Book of Jurisprudence (6th ed.), 1929, and his
collected papers Essays in Jurisprudence and Ethics, 1882, and Essays in the
Law, ],e22.
6 Law in the Making (2nd ed.), 1930.
7 L. Q. I. 1930 and 1931.
1 193-2.](ViewImageLocal?handle=hein.journals/lqr50&div=9&collection=&method=preview&ext=.png&size=3)
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