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Tuesday, 01 May 2007 17:49 |
 | | Dr. Ellen Pearson |
From Staff Reports
HENDERSONVILLE ó The conscious decision of whether to obey or disobey the law is a lingering question that American citizens must constantly confront, regardless of their race, religion or creed, according to Dr. Ellen Pearson, a history professor at UNC Asheville.
Pearson discussed the effects of English common law on the legislatures of early colonial America during a talk at UNCAís Kellogg Center on April 3. The talk, which was part of the Great Quotes lecture series sponsored by UNCAís Philosophy Department and the Institute for Applied Philosophy, was titled ìCommon Law and the Creation of American Identity in the Early Republic.î About 40 people attended the talk.
Pearson began by discussing the formation of an Anglo-American identity
in the early republic. While the colonies enjoyed economic growth, she
said, they lacked the cultural wealth of their metropolitan motherland.
These colonies functioned under the language and customs of England and
had no distinct identity of their own.
Pearson noted that the implementation of a codified system of law
served as a key element in establishing Colonial Americaís own separate
identity from England. An effective and enduring system of law would
provide a cultural advantage over England and its complex and
convoluted system of law, which relied heavily on customs and feudal
vestiges. Such a system of law would dissipate the early colonistsí
feelings of a lingering cultural dependence on England.
According to Pearson, the early laws of colonial America strove to
eliminate the feudal vestiges of England ìand reduce law to a
scientific rational code.î Colonists desired a codified manifestation
of law that relied less on customs and feudal relationships.
She then noted that in order for a written system of law to exist and
succeed, there must also exist some form of unwritten law. Pearson
asserted that laws could not simply be ìblack and white.î Law must have
some sort of flexibility to meet extenuating circumstances that lie
outside the realm of legislative documentation. Unwritten law is a
prerequisite for written law, and forms the foundation for complex
legislative mediation, she argued.
Pearson went on to discuss colonistsí opposition to a highly
centralized federal system of law. She noted that many of the colonists
wished to preserve the place of common law in their state legislatures.
Because of the varying sizes and economies of the early republicís
colonies, a universal and federalized system of government was greatly
feared.
According to Pearson, many colonists believed that the republic could
not function under ìone uniform umbrella of legal principles.î They
believed that common law should remain under the jurisdiction of state
and local governments to prevent federal encroachment upon the civil
liberties of the Early Republic.
She attributed the differences between English and American Common Law to ìcultural dissemblance.î
Pearson asserted that Englandís legal system was based on layers and layers of case law, which in turn led to great complexity.
Elaborating, she said that while Englandís legal system was compounded
by centuries of court delegations, American society during the colonial
era was still relatively simple. It did not require the intricate
magistracies of England in order to be successful. However, the
American colonies did possess complex and blooming economies that
required a written system of commercial law. Such differences in social
structures led English law to be custom-based, while American law is
economically based.
Pearson ended her lecture by noting that the ability to withstand
centuries of turmoil proved American Common Law to be a symbol of the
development of an Anglo-American identity separate from that of
England.
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