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8 - The common peace

Published online by Cambridge University Press:  10 January 2011

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Summary

More than a century ago, the American jurist and legal scholar Oliver Wendell Holmes wrote, “The life of the law has not been logic, it has been experience.” As it operated in early modern England, the criminal law involved logic in the common rather than in the scientific sense. The enforcement of the law was an exercise of choices, not of categorizations. And this exercise routinely modified the theories of legal science to suit the specific complexities of daily life. The gap between law as written and law as lived did not betoken ignorance or incompetence; the divergence created room for the manipulation of authority to fit circumstances, and ensured that mercy remained a gift, never an unquestioned right. The criminal law fundamentally concerned the maintenance of morality; it could not routinely be abrogated without losing its validity. Morality was supposed to be unchanging, and the formal law reflected that constancy. To deny flexibility in the operation of the law, however, was to place an unmanageable burden on both the governed and the governors. As a consequence, the criminal law as written worked as an ideal, as a moral standard that was enforced or waived as seemed appropriate.

The maintenance of two levels of law paralleled the two distinct scriptural inheritances of early modern England.

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The Common Peace
Participation and the Criminal Law in Seventeenth-Century England
, pp. 193 - 206
Publisher: Cambridge University Press
Print publication year: 1987

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