David Hume and the Common Law of England

Journal of Scottish Philosophy 3 (1):67-82 (2005)
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Abstract

David Hume’s legal theory has normally been interpreted as bearing close affinities to the English common law theory of jurisprudence. I argue that this is not accurate. For Hume, it is the nature and functioning of a country’s legal system, not the provenance of that system, that provides the foundation of its authority. He judges government by its ability to protect property in a reliable and equitable way. His positions on the role of equity in the law, on artificial reason and the esoteric nature of the law, and on the role of judges in the legal system are all at odds with those of the common lawyers.

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