Legal History

This book describes the encounter between the common law legal system and the tribal peoples of North America and Australasia. It is a history of the role of anglophone law in managing relations between the British settlers and indigenous peoples. That history runs from the plantation of Ireland and settlement of the New World to the end of the 20th century. The book begins by looking at the nature of British imperialism and the position of non-Christian peoples at large in the 17th and 18th centuries. It then focuses on North America and Australasia from their early national periods in the 19th century to the modern era. The historical basis of relations is described through the key, enduring, but constantly shifting questions of sovereignty, status and, more latterly, self-determination. Throughout the history of engagement with common law legalism, questions surrounding the settler-state's recognition — or otherwise — of the integrity of the tribe have recurred. These issues were addressed in many and varied imperial and colonial contexts, but all jurisdictions have shared remarkable historical parallels which have been accentuated by their common legal heritage. The same questioning continues today in the renewed and controversial claims of the tribal societies to a distinct constitutional position and associated rights of self-determination. The author examines the political resurgence of aboriginal peoples in the last quarter of the 20th century. A period of ‘rights-recognition’ was transformed into a second-generation jurisprudence of rights-management and rights-integration. From the 1990s onwards, aboriginal affairs have been driven by an increasingly rampant legalism.

Aboriginal title was one of the most remarkable and controversial legal developments in the common law world of the late-twentieth century. The common law doctrine gave sudden substance to the tribes' claims to justiciable property rights over their traditional lands, catapulting these up the national agenda and jolting them out of a seemingly embedded culture of governmental inattention. In a series of breakthrough cases national courts adopted the argument developed first in western Canada, and then New Zealand and Australia by a handful of influential scholars. Almost overnight these cases changed the political leverage of indigenous peoples. By the beginning of the millennium the doctrine had spread to Malaysia, Belize, and southern Africa, and had a profound impact upon the rapid development of international law of indigenous peoples' rights. This book is a history of this doctrine and the explosion of intellectual activity arising from this inrush of legalism into the tribes' relations with the Anglo settler state. The author of this book was one of the key scholars involved from the doctrine's appearance in the early 1980s as an exhortation to the courts, and a figure who has both witnessed and contributed to its acceptance and subsequent pattern of development. The book looks critically at the early conceptualisation of the doctrine, its doctrinal elaboration and evisceration in Canada and Australia — the busiest jurisdictions — through a proprietary paradigm located primarily (and constrictively) inside adjudicative processes. This book also considers the issues of inter-disciplinary thought and practice (for anthropologists and historians especially) arising from national legal systems' recognition of aboriginal land rights, including the emergent and associated themes of self-determination that surfaced more overtly during the 1990s and after. The doctrine made modern legal history, and it is still making it.

The modern adversarial criminal trial emerged from the punitive and procedural upheaval in the criminal law of the first half of the nineteenth century. The campaign against capital punishment, which marked the century's early decades, stimulated procedural reform, including the enactment in 1836 of the Prisoners' Counsel Act. The 1836 Act enabled defence counsel for the first time to address the jury in felony trials. It generated a unique debate in Parliament, the press and the legal professions on the merits and dangers of advocacy. This book examines the debate and the practical implications of procedural reform for the conduct of criminal trials. The topics discussed include the increasing sophistication of prosecution and defence advocacy, the beginnings of modern professional ethics and the conscious rationalisation of adversary procedure as the best means to discover the truth. The book analyses the practice of advocacy and identifies its significance for the administration of justice. It includes case studies of four major criminal trials that demonstrate the interrelationships between advocacy and procedure in the making of the adversarial criminal trial.

This book is an exploration of the ways in which Americans have perceived, applied, advanced, and frustrated international law. It demonstrates the varieties and continuities of America's approaches to international law. The book begins with the important role the law of nations played for founders like Jefferson and Madison in framing the Declaration of Independence and the Constitution. It then discusses the intellectual contributions to international law made by leaders in the New Republic — Kent and Wheaton — and the place of international law in the 19th century judgments of Marshall, Story, and Taney. The book goes on to examine the contributions of American utopians — Dodge, Worcester, Ladd, Burritt, and Carnegie — to the establishment of the League of Nations, the World Court, the International Law Association, and the American Society of International Law. It finishes with an analysis of the wavering support to international law given by Woodrow Wilson and the emergence of a new American isolationism following the disappointment of World War I.

The beginning of Anglo–Hindu jurisprudence was occasioned by decisive developments in the cultural, intellectual, and legal history of India. This book deals with the appropriation of the Dharmaśāstras — a powerful written tradition — and its codification, in the construction of Hindu law. It explores the significant connections between this process of formalization and the consolidation of the empire in Bengal. It analyses the shifting administrative and political needs of the colonial regime as well as the perceptions and attitudes of the officials in this process of codification. Through a careful study of the compilations, Vivādarṇavasetu and Vivādabhangārṇava alongside their late eighteenth-century colonial translations, the book brings out the ways in which ancient textual traditions — the prescriptive, normative, and moralistic rules of the Dharmaśāstras — were metamorphosed into legal rules to be directly administered in courts. Investigating the intricate and dynamic links between power and knowledge in the evolution of institutions under colonial rule, this book underlines innovative ways of looking at the legal history of colonial India.

This book contributes to the debate about the relationship between law and society in the Roman world. This debate, which was initiated by the work of John Crook in the 1960s, has had a profound impact upon the study of law and history and has created sharply divided opinions on the extent to which law may be said to be a product of the society that created it. This work is an attempt to provide a balanced assessment of the various points of view. The chapters within the book have been specifically arranged to represent the debate. The chapters address this debate by focusing on studies of law and empire, codes and codification, death and economics, commerce and procedure. This book does not purport to provide a complete survey of Roman private law in light of Roman society. Its primary aim is to address specific areas of the law with a view to contributing to the larger debate.

This book analyzes the British Government's radical change in policy during the late 1950s on the use of bills of rights in colonial territories nearing independence. More broadly it explores the political dimensions of securing the protection of human rights at independence and the peaceful transfer of power through constitutional means. This book fills a major gap in the literature on British and Commonwealth law, history, and politics by documenting how bills of rights became commonplace in Britain' s former overseas territories. It provides a detailed empirical account of the origins of the bills of rights in Britain's former colonial territories in Africa, the West Indies, and South East Asia as well as in the Atlantic and Pacific Oceans. It sheds light on the development of legal systems at the point of gaining independence and raises questions about the colonial influence on the British legal establishment's change in attitude towards bills of rights in the late 20th century. It presents an alternative perspective on the end of Empire by focusing upon one aspect of constitutional decolonization and the importance of the local legal culture in determining each dependency's constitutional settlement and provides a series of empirical case studies on the incorporation of human rights instruments into domestic constitutions when negotiated between a state and its dependencies. More generally, this book highlights Britain's human rights legacy to its former Empire, and traces the genesis of the bills of rights of over thirty nations from the Commonwealth.

While common law actions for breach of promise of marriage originated in the mid-seventeenth century, it was not until the ‘long nineteenth century’ that they saw their rise to prominence and their subsequent fall from favour. This monograph ties the story of the action's rise and fall between 1800 and 1940 to changes in the prevalent conception of woman, her ideal role in society, sexual relations, and the family, arguing that the idiosyncratic nineteenth-century breach-of-promise suit (a luxuriant blend of both contract and tort) and Victorian notions of ideal femininity were uneasily and fatally, but nonetheless inextricably, entwined. It classifies the ninteenth-century breach-of-promise action as a ‘codification’ of the contemporaneous ideal of true womanhood and explores the longer-term implications of this infusion of mythologized femininity for the law, in particular for the position of plaintiffs. Surveying three consecutive time periods – the early nineteenth century, the high Victorian, and the post-Victorian periods – and adopting an interdisciplinary approach that combines the perspectives of legal history, social history, and literary analysis, it argues that the feminizing process, by shaping a cause of action in accordance with an ideal at odds with the very notion of women going to law, imported a fatal structural inconsistency that at first remained obscured, but ultimately vulgarized and undid the cause of action. Alongside more than two hundred and fifty real-life breach-of-promise cases, the book examines literary and cinematic renditions of the breach-of-promise theme, by artists ranging from Charles Dickens to P. G. Wodehouse, in order to expose the subtle yet unmistakable ways in which what happened (and what changed) in the breach-of-promise courtroom influenced the changing representation of the breach-of-promise plaintiff in nineteenth- and early twentieth-century literature and film.

This book recounts the history of the nation's first civil rights act, from its passage in 1866 through its interpretation and reenactment in developments that reach the present day. The Civil Rights Act of 1866 created civil rights as we now know them, and it exercised a deep and continuing influence over the constitutional and statutory protection of these rights. Almost all of the controversy over civil rights, from the scope of federal prohibitions against private discrimination to the remedies available to victims of civil rights violations, finds its roots in debates over the act. These issues are important in themselves, and all the more so because they exemplify the complementary roles of the legislature and the judiciary in giving meaning to the constitutional ideal of equality in public life. This book offers an appreciation of the Civil Rights Act of 1866, hitherto regarded in only selective and partial perspective, and provides a comprehensive view of the act over nearly a century and a half and a detailed account of its leading role in making civil rights a reality.

This book examines the origins of the controversial practice of plea bargaining, a procedure that appears to reward the guilty. Contrary to popular perception of plea bargaining as an innovation or corruption of the post-World War II years, it shows the practice to have emerged early in the American Republic. The book argues that plea bargaining arose in the 1830s as part of a process of political stabilization, and as an effort to legitimate the democratic institutions of self-rule that were crucial to Whig efforts to reconsolidate the political power of Boston's social and economic elite. At this time, local political institutions were spare and fragmentary, and the courts, the author argues, stepped forward as agents of the state to promote social order. Plea bargaining drew conflicts into the courts while maintaining elite discretion over sentencing policy. The book argues that plea bargaining should be seen as part of a larger repertoire of techniques in the Anglo-American legal tradition through which law might be used as a vehicle of rule. In this context, plea bargaining provided a unique match between the needs of the elites to maximize flexibility in criminal sanction and an emerging liberal ideology.