Books of authority
Encyclopedia
Books of authority is a term used by legal writers to refer to a number of early legal textbook
s that are excepted from the rule that textbooks (and all books other than statute
or law report
) are not treated as authorities by the courts of England and Wales
and other common law
jurisdictions.
These books are treated by the courts as authoritative statements of the law as it was at the time at which they were written, on the authority of their authors alone. Consequently, they are treated as authoritative statements of the law as it is at the present time, unless it is shown that the law has changed, and may be cited and relied on in court as such.
The statements made in these books are presumed to be evidence of judicial decisions which are no longer extant
. The primary reason for this practice is the difficulty associated with ascertaining the law of the medieval and early modern periods.
On the subject of this practice, William Blackstone
said:
was believed to be a prolific author of common law
procedural
treatises
, and numerous works were attributed to him. These included not only the eponymous "Hengham parva" and "Hengham magna", but also "Cum sit necessarium", "Exceptiones ad Cassandum Brevia", "Fet Asaver", "Judicium Essoniorum", and "Modus Componendi Brevia", among others. More recent scholarly analysis
, however, reveals that only the "Parva" (a set of lectures directed towards junior-level law students) is conclusively his. Hengham may also have written two consultations.
Textbook
A textbook or coursebook is a manual of instruction in any branch of study. Textbooks are produced according to the demands of educational institutions...
s that are excepted from the rule that textbooks (and all books other than statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
or law report
Law report
Law reports or reporters are series of books that contain judicial opinions from a selection of case law decided by courts. When a particular judicial opinion is referenced, the law report series in which the opinion is printed will determine the case citation format.The term reporter was...
) are not treated as authorities by the courts of England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
and other common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions.
These books are treated by the courts as authoritative statements of the law as it was at the time at which they were written, on the authority of their authors alone. Consequently, they are treated as authoritative statements of the law as it is at the present time, unless it is shown that the law has changed, and may be cited and relied on in court as such.
The statements made in these books are presumed to be evidence of judicial decisions which are no longer extant
Extant literature
Extant literature refers to texts that have survived from the past to the present time. Extant literature can be divided into extant original manuscripts, copies of original manuscripts, quotations and paraphrases of passages of non-extant texts contained in other works, translations of non-extant...
. The primary reason for this practice is the difficulty associated with ascertaining the law of the medieval and early modern periods.
On the subject of this practice, William Blackstone
William Blackstone
Sir William Blackstone KC SL was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England. Born into a middle class family in London, Blackstone was educated at Charterhouse School before matriculating at Pembroke...
said:
Anonymous
- The author of the Abridgement of the Book of Assizes (c.1510) is unknown. This book is sometimes called Liber Assisarum, after the Year BookYear BooksThe Year Books are the modern English name that is now typically given to the earliest law reports of England. Substantial numbers of manuscripts circulated during the later medieval period containing reports of pleas heard before the Common Bench. In the sixteenth century versions of this...
from which some of its cases are abridged.
Glanvill
- Tractatus de Legibus et Consuetudinibus regni AngliaeTractatus of GlanvillThe Tractatus de legibus et consuetudinibus regni Angliae is the earliest treatise on English law. Commonly attributed to Ranulf de Glanvill and dated ca. 1188, it was revolutionary in its systematic codification that defined legal process and introduced writs, innovations that have survived to...
. (Treatise on the Laws and Customs of the Realm of England). (c.1189). Attributed to Ranulf de Glanvill; possibly the work of Hubert Walter.
Bracton
- De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England) (c.1250) by Henry de BractonHenry de BractonHenry of Bracton, also Henry de Bracton, also Henrici Bracton, or Henry Bratton also Henry Bretton was an English jurist....
.
Britton
- Summa de Legibus Anglie que Vocatur Bretone ("Britton")Britton (law)Britton is the earliest summary of the law of England in the French tongue, which purports to have been written by command of King Edward I.The origin and authorship of the work have been much disputed. It has been attributed to John le Breton, bishop of Hereford, on the authority of a passage...
. (late 13th century).
Hengham
Traditionally, Ralph de HenghamRalph de Hengham
Sir Ralph de Hengham was an English justice. His first employer was Giles of Erdington a justice of the Common Bench, whose service he entered as a clerk before 1255...
was believed to be a prolific author of common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
procedural
Procedural law
Procedural law or adjective law comprises the rules by which a court hears and determines what happens in civil lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process or fundamental justice to all cases that come before...
treatises
Legal treatise
A legal treatise is a scholarly legal publication containing all the law relating to a particular area, such as criminal law or trusts and estates...
, and numerous works were attributed to him. These included not only the eponymous "Hengham parva" and "Hengham magna", but also "Cum sit necessarium", "Exceptiones ad Cassandum Brevia", "Fet Asaver", "Judicium Essoniorum", and "Modus Componendi Brevia", among others. More recent scholarly analysis
Textual criticism
Textual criticism is a branch of literary criticism that is concerned with the identification and removal of transcription errors in the texts of manuscripts...
, however, reveals that only the "Parva" (a set of lectures directed towards junior-level law students) is conclusively his. Hengham may also have written two consultations.
Fitzherbert
- La Novelle Natura BreviumLa Novelle Natura BreviumLa Novelle Natura Brevium was a treatise on English law by Anthony Fitzherbert. It is often cited in judgments today across the common law world, and represents an important tract on the rules of common law in the 16th century....
(New Natura Brevium) (1534) by Anthony FitzherbertAnthony FitzherbertSir Anthony Fitzherbert was an English judge, scholar and legal author, particularly known for his treatise on English law, New Natura Brevium .-Biography:...
.
Hale
- Historia Placitorum CoronæHistoria Placitorum CoronæHistoria Placitorum Coronæ or The History of the Pleas of the Crown is an influential treatise on the criminal law of England, written by Sir Matthew Hale and published posthumously by Sollom Emlyn in 1736...
(The History of the Pleas of the Crown) (1736) by Matthew HaleMatthew Hale (jurist)Sir Matthew Hale SL was an influential English barrister, judge and jurist most noted for his treatise Historia Placitorum Coronæ, or The History of the Pleas of the Crown. Born to a barrister and his wife, who had both died by the time he was 5, Hale was raised by his father's relative, a strict...
.
Hawkins
- Treatise on Pleas of the Crown (1716) by William HawkinsWilliam Hawkins (serjeant-at-law)William Hawkins was a barrister and serjeant-at-law, best known for his work on the English criminal law, Treatise of Pleas of the Crown....
.
External links
- Rutgers University, Books of authority