Legal History : upso

Parchment Paper Pixels

Peter M. Tiersma — 2013-03-21

Author:: Peter M. Tiersma
ISBN:: 9780226803067
Publisher:: University of Chicago Press
Subjects:: Law, Legal History
DOI:: 10.7208/chicago/9780226803074.001.0001
Published in print:: 2010
Published Online:: 2013-03-21

Technological revolutions have had an unquestionable, if still debatable, impact on culture and society—perhaps none more so than the written word. In the legal realm, the rise of literacy and print culture made possible the governing of large empires, the memorializing of private legal transactions, and the broad distribution of judicial precedents and legislation. Yet each of these technologies has its shadow side: written or printed texts easily become static and the textual practices of the legal profession can frustrate ordinary citizens, who may be bound by documents whose implications they scarcely understand. This book offers an exploration of the impact of three technological revolutions on the law. Beginning with the invention of writing, continuing with the mass production of identical copies of legal texts brought about by the printing press, and ending with a discussion of computers and the Internet, it traces the journey of contracts, wills, statutes, judicial opinions, and other legal texts through the past and into the future.

The Constitution in Congress

David P. Currie — 2013-03-21

Author:: David P. Currie
ISBN:: 9780226129167
Publisher:: University of Chicago Press
Subjects:: Law, Legal History
DOI:: 10.7208/chicago/9780226131160.001.0001
Published in print:: 2006
Published Online:: 2013-03-21

This series serves as a biography of the U.S. Constitution, surveying the congressional history behind its development. In a rare examination of the role that both the legislative and executive branches have played in the development of constitutional interpretation, the series shows how the actions and proceedings of these branches reveal perhaps even more about constitutional disputes than Supreme Court decisions of the time. The centerpiece for the fourth volume in this series is the great debate over slavery and how this divisive issue led the country into the maelstrom of the Civil War. From the Jacksonian revolution of 1829 to the secession of Southern states from the Union, the book provides an unrivaled analysis of the significant constitutional events—the Wilmot Proviso, the Compromise of 1850, the Kansas-Nebraska Act, the Lincoln-Douglas Debates, and “Bleeding Kansas”—that led up to the war. Exploring how slavery was addressed in presidential speeches and debated in Congress, the book shows how the Southern Democrats dangerously diminished federal authority and expanded states' rights, threatening the nation's very survival.

Legalism

Paul Dresch and Hannah Skoda — 2013-01-24

Author:: PaulDreschFellow by Special Election, St John's College, Oxford, University Lecturer in Social AnthropologyHannahSkodaTutor and Fellow in history, St John's College, Oxford
ISBN:: 9780199664269
Publisher:: Oxford University Press
Subjects:: Law, Comparative Law, Legal History
DOI:: 10.1093/acprof:oso/9780199664269.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

Law and law-like institutions are visible in human societies very distant from each other in time and space. When it comes to observing and analysing such social constructs historians, anthropologists, and lawyers run into notorious difficulties in how to conceptualize them. Do they conform to a single category of ‘law’? How are divergent understandings of the nature and purpose of law to be described and explained? Such questions reach to the heart of philosophical attempts to understand the nature of law, but arise whenever we are confronted by law-like practices and concepts in societies not our own. This book analyses the nature and meaning of law in diverse societies. The book starts from the concept of legalism, taken from the anthropologist Lloyd Fallers, whose 1960s work on Africa engaged, unusually, with jurisprudence. The concept highlights appeal to categories and rules. The degree to which legalism in this sense informs people's lives varies within and between societies, and over time, but it can colour equally both ‘simple’ and ‘complex’ law. Breaking with recent emphases on ‘practice’, the chapters explore, in a set of cases, the place of legalism in the workings of social life. The chapters make obvious the need to question our parochial common sense where ideals of moral order at other times and places differ from those of modern North Atlantic governance. State-centred law, for instance, is far from a ‘central case’. Legalism may be ‘aspirational’, connecting people to wider visions of morality; duty may be as prominent a theme as rights; and rulers from thirteenth-century England to sixteenth-century Burma appropriate, as much they impose, a vision of justice as consistency. The use of explicit categories and rules does not reduce to simple questions of power.

The Legal Understanding of Slavery

Jean Allain — 2013-01-24

Author:: JeanAllainProfessor of Public International Law, Queen's University Belfast
ISBN:: 9780199660469
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Legal History
DOI:: 10.1093/acprof:oso/9780199660469.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

‘Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’. So reads the legal definition of slavery agreed by the League of Nations in 1926. Further enshrined in law during international negotiations in 1956 and 1998, this definition has been interpreted in different ways by the international courts in the intervening years. What can be considered slavery? Should forced labour be considered slavery? Debt-bondage? Child soldiering? Or forced marriage? This book explores the limits of how slavery is understood in law. It shows how the definition of slavery in law and the contemporary understanding of slavery has continually evolved and continues to be contentious. It traces the evolution of concepts of slavery, from Roman law through the Middle Ages, the 18th and 19th centuries, up to the modern day manifestations, including manifestations of forced labour and trafficking in persons, and considers how the 1926 definition can distinguish slavery from lesser servitudes. The book includes a set of guidelines intended to clarify the law where slavery is concerned.

The Community of the College of Justice

John Finlay — 2013-01-24

Author:: John Finlay
ISBN:: 9780748645770
Publisher:: Edinburgh University Press
Subjects:: Law, Legal History
DOI:: 10.3366/edinburgh/9780748645770.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

This book is an analysis of those who worked in the Court of Session, Scotland's central civil court, during the eighteenth century. It looks at the activities of the highest members of what was the College of Justice, the judges and the advocates, whose arguments and decisions guided the development of Scots law, as well as the macers, clerks, keepers and agents whose roles were vital in allowing the court to deal with its business. The Court of Session had a central place in Edinburgh and its members were drawn from across Scotland. It was the professional milieu of men of the calibre of Lord Kames, Sir David Dalrymple of Hailes and Sir Walter Scott. Despite a turbulent history with a town council jealous of their privileges, College members made a profound contribution to the physical and cultural development of Edinburgh as a city. This is their story.

Colonial Copyright

Michael D. Birnhack — 2013-01-24

Author:: Michael D. Birnhack
ISBN:: 9780199661138
Publisher:: Oxford University Press
Subjects:: Law, Legal History, Intellectual Property, IT, and Media Law
DOI:: 10.1093/acprof:oso/9780199661138.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

When the British Empire enacted copyright law for its colonies, it called it colonial copyright, or imperial copyright, but it had only one kind of interest in mind: its own. This book deconstructs the imperial policy regarding copyright, by reversing the order and asking how British copyright was received in the colonies. Colonial copyright is told here from the point of view of the colonized, rather than the colonizer’s standpoint. The book suggests a general model of Colonial Copyright, understood as the intersection of legal transplants, colonial law, and the particular features of copyright, especially authorship. Mandate Palestine (1917–48) is the leading case study. The book tells a yet-untold history of copyright law that was the basis of Israeli law, and still is the law in the Palestinian Authority. The discussion is a critical cultural legal history, told from a postcolonial stance. It queries the British motivation in enacting copyright law, traces their first, indifferent reaction, and continues with the gradual absorption into the local legal and cultural systems. The story unfolded explores the emergence of local literary activities, the introduction of telegraph and radio, and the business models of the content industries. We shall meet many pioneers, in literature, music, film, and the law. The discussion is acutely aware of the role of identity politics, and of the meeting point of the foreign, colonial law with the local norms and cultures. It suggests that we view colonial copyright as an early case of globalization.

Civil Rights in the Shadow of Slavery

George A. Rutherglen — 2013-01-24

Author:: George A. Rutherglen
ISBN:: 9780199739707
Publisher:: Oxford University Press
Subjects:: Law, Legal History, Human Rights Law
DOI:: 10.1093/acprof:oso/9780199739707.001.0001
Published in print:: 2012
Published Online:: 2013-01-24

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.

Medieval Hindu Law

Ashutosh Dayal Mathur — 2012-10-18

Author:: Ashutosh DayalMathurUniversity of Delhi
ISBN:: 9780195685589
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780195685589.001.0001
Published in print:: 2007
Published Online:: 2012-10-18

This book seeks to study the changes which took place in the field of Hindu law as it evolved between the eighth and the fourteenth centuries and as reflected in selected Sanskrit texts written during this period. It also tries to explore the reasons which brought about those changes. Hindu law has a history of nearly four to five millennia recorded in an astonishingly large and varied range of texts. During this long journey, it has appeared in many different manifestations and has gone through several transformations with different sources, validating factors or justifications, methodologies and operative machinery. The Indian textual tradition can be broadly covered under three major stages, namely the stage of the Vedas, the stage of the ṣrtis, which includes both the later Vaidika texts called the dharma sūtras and the metrical sṃrtis, and the stage of commentaries and digests. This book argues that in the early medieval period, Hindu law emerged from the shadows of dharma and established itself independently as ‘vyvahāra’. This process is called the secularization of Hindu law. The book is an intensive study of seven leading ‘vyvahāra’ texts ranging from eighth to fourteenth-century.

India in the Shadows of Empire

Mithi Mukherjee — 2012-10-18

Author:: Mithi Mukherjee
ISBN:: 9780198062509
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780198062509.001.0001
Published in print:: 2009
Published Online:: 2012-10-18

This book explains the postcolonial Indian polity by presenting an alternative historical narrative of the British Empire in India and India's struggle for independence. It pursues this narrative along two major trajectories. On the one hand, it focuses on the role of imperial judicial institutions and practices in the making of both the British Empire and the anti-colonial movement under the Congress, with the lawyer as political leader. On the other hand, it offers a novel interpretation of Gandhi's non-violent resistance movement as being different from the Congress. It shows that the Gandhian movement, as the most powerful force largely responsible for India's independence, was anchored not in western discourses of political and legislative freedom but rather in Indic traditions of renunciative freedom, with the renouncer as leader.

Appropriation and Invention of Tradition

Nandini Bhattacharya-Panda — 2012-10-18

Author:: Nandini Bhattacharya-Panda
ISBN:: 9780195690484
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780195690484.001.0001
Published in print:: 2007
Published Online:: 2012-10-18

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.

Roman Law, Scots Law and Legal History

William Gordon — 2012-09-20

Author:: William Gordon
ISBN:: 9780748625161
Publisher:: Edinburgh University Press
Subjects:: Law, Legal History
DOI:: 10.3366/edinburgh/9780748625161.001.0001
Published in print:: 2007
Published Online:: 2012-09-20

A collection of articles on themes of Roman law, Scots law and legal history arranged in five groups. The first deals with problems in the Roman law of property and obligations, including three articles on transfer by delivery or traditio and others on the controversial date of the lex Aquilia, depositum irregulare, the actio de posito and agency in Roman law. The second ranges over medieval interpretations of Roman texts and their application, producing surprising results, the use or apparent use of Roman law in a particular case and the way in which Roman law has been followed but adapted in relation to servitudes, quasi-delicts and risk in sale, where it has been followed not entirely appropriately in sale of land. The third group takes up a variety of issues in Scottish legal history – discrimination against women, the important law commission chaired by George Joseph Bell and the curious history of the law on variation and discharge of land obligations, Stair’s use of Grotius and other sources and early legal records, including the Registrum referred to in Balfour’s Practicks. The fourth group deals with the general influence of the Civil and Canon law on the law both of England and Scotland and with the influence partly transmitted by French writers. The final group looks at Scotland as a mixed jurisdiction, the Europeanisation of law and the force and limits of legal tradition. The book concludes with a list of the author’s publications up to 2004.

Religious Pluralism and Islamic Law

Anver M. Emon — 2012-09-20

Author:: Anver M. Emon
ISBN:: 9780199661633
Publisher:: Oxford University Press
Subjects:: Law, Legal History, Comparative Law
DOI:: 10.1093/acprof:oso/9780199661633.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

This book problematizes tolerance as a conceptually helpful or coherent concept for understanding the significance of the dhimmī rules, the Islamic legal doctrines that governed and regulated non-Muslim permanent residents in Islamic lands. In doing so, it suggests that the Islamic legal treatment of non-Muslims is symptomatic of the more general challenge of governing a diverse polity. Far from being constitutive of an Islamic ethos, the dhimmī rules are symptomatic of the messy business of ordering and regulating a diverse society. This understanding of the dhimmī rules allows us to view the dhimmī rules in the larger context of law and pluralism, and in that fashion, creates new spaces for analyzing Sharīʿa as one among many legal systems that, far from being unique, suffers similar challenges as other legal systems that also contend with the challenges of governing amidst diversity.

The Oxford History of the Laws of England

John Hudson — 2012-09-20

Author:: John Hudson
ISBN:: 9780198260301
Publisher:: Oxford University Press
Subjects:: Law, Legal History, Constitutional and Administrative Law
DOI:: 10.1093/acprof:oso/9780198260301.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

This volume, in the Oxford History of the Laws of England series, spans three centuries that encompassed the tumultuous years of the Norman conquest, and during which the common law as we know it today began to emerge. It treats all aspects of the early development of the English common law in a century, and features research into the original sources that bring the era to life, and provides an interpretative account, a subject analysis, and glimpses into medieval disputes. Starting with King Alfred (871–899), this book examines the particular contributions of the Anglo‐Saxon period to the development of English law, including the development of a powerful machinery of royal government, significant aspects of a long-lasting court structure, and important elements of law relating to theft and violence. Until the reign of King Stephen (1135–54), these Anglo‐Saxon contributions were maintained by the Norman rulers, whilst the Conquest of 1066 led to the development of key aspects of landholding that were to have a continuing effect on the emerging common law. The Angevin period saw the establishment of more routine royal administration of justice, closer links between central government and individuals in the localities, and growing bureaucratization. Finally, the later twelfth and earlier thirteenth century saw influential changes in legal expertise. The book concludes with the rebellion against King John in 1215 and the production of the Magna Carta.

Judges of the Supreme Court of India

George H. Gadbois, Jr — 2012-09-20

Author:: George H. Gadbois, Jr
ISBN:: 9780198070610
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780198070610.001.0001
Published in print:: 2011
Published Online:: 2012-09-20

Despite the critical role played by the Supreme Court of India (SCI), the lives of the judges have never been studied before. This book presents biographical essays for each of the first ninety-three judges who served on the Court from 1950 through mid-1989. The essays are based on interviews the author conducted with sixty-four of the sixty-eight judges who were alive in the 1980s, and on meetings and correspondence with relatives, friends, and associates of the deceased judges. The book provides account for why certain judges rather than others were chosen and who were the people that selected them. It provides a collective portrait of these judges, paying particular attention to changes in their background characteristics — fathers’ occupation, education, pre-SCI career, caste, religion, state of birth, and region, over four decades, and post-retirement activities. This is an invaluable reference book for teachers and students of law as well as judges and advocates. Scholars and students from the disciplines of sociology, political science, along with journalists and general readers will also find the book useful.

The History of ICSID

Antonio R. Parra — 2012-09-20

Author:: Antonio R. Parra
ISBN:: 9780199660568
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Legal History
DOI:: 10.1093/acprof:oso/9780199660568.001.0001
Published in print:: 2012
Published Online:: 2012-09-20

This book details the history and development of the International Centre for Settlement of Investment Disputes (ICSID) and its constituent treaty, the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, covering the years from 1955 to 2010. The book traces the immediate origins of the Convention, in the years 1955 to 1962, and gives a stage-by-stage narrative of the drafting of the Convention between 1962 and 1965. It recounts details of bringing the Convention into force in 1966 and the elaboration of the initial versions of the Regulations and Rules of ICSID adopted at the first meetings of its Administrative Council in 1967. The three periods 1968 to 1988, 1989 to 1999, and 2000 to June 30, 2010, are covered in separate chapters which examine the expansion of the Centre's activities and changes made to the Regulations and Rules over the years. There are also overviews of the conciliation and arbitration cases submitted to ICSID in the respective periods, followed by in-depth discussions of selected cases and key issues within them. A concluding chapter discusses some of the broad themes and findings of the book, and includes several suggestions for further changes at ICSID to help ensure its continued success.

The Courts, the Church and the Constitution

Jean Clark Foundation for Legal Edu and Alan Rodger — 2012-09-20

Author:: Jean Clark Foundation for Legal Edu, Alan Rodger
ISBN:: 9780748637546
Publisher:: Edinburgh University Press
Subjects:: Law, Legal History
DOI:: 10.3366/edinburgh/9780748637546.001.0001
Published in print:: 2008
Published Online:: 2012-09-20

Commissioned by the Clark Foundation for Legal Education, this book is derived from the inaugural Jean Clark Lectures, hosted by the University of Aberdeen in 2007. Across three lectures, the text discusses and analyses the legal and constitutional issues arising from the Disruption of the Church of Scotland in 1843 when the majority of leading ministers left the Church of Scotland to set up the Free Church. It takes a look at the series of cases in the Court of Session and the House of Lords between 1837 and 1843 which led to the Disruption, showing how they gave rise to the most important constitutional crisis and challenge to the Courts' authority that had occurred since the 1707 Union.

Islamic Law in Action

Kristen Stilt — 2012-05-24

Author:: Kristen Stilt
ISBN:: 9780199602438
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780199602438.001.0001
Published in print:: 2012
Published Online:: 2012-05-24

A dynamic account of the practice of Islamic law, this book focuses on the actions of a particular legal official, the muhtasib, whose vast jurisdiction included all public behavior. In the cities of Cairo and neighboring Fustat during the Mamluk period (1250-1517), the men who held the position of muhtasib acted as regulators of markets and public spaces generally. They traversed their jurisdictions carrying out the duty to command right and forbid wrong, and were as much a part of the legal landscape as the better-known figures of judge and mufti. Taking directions from the rulers, the sultan foremost among them, they were also guided by legal doctrine as formulated by the jurists, combining these two sources of law in one face of authority. The daily workings of the law are illuminated by the reports of the muhtasib in the vivid Mamluk-era chronicles, which often also captured the responses of the individuals who encountered the official. The book is organized around actions taken by the muhtasib in the areas of Muslim devotional and pious practices; crimes and offenses; the management of Christians and Jews; market regulation and consumer protection; the specific markets for essential bread; currency and taxes; and public order. The case studies presented show that while legal doctrine was clearly relevant to the muhtasib’s actions, the policy demands of the sultan were also quite significant, and rules from both sources of authority intersected with social, political, economic, and personal factors to create full and vibrant scenarios that reveal the practice of Islamic law.

Southern Cross

Reinhard Zimmermann and Daniel Visser — 2012-03-22

Author:: ReinhardZimmermannUniversity of RegensburgDanielVisserUniversity of Cape Town
ISBN:: 9780198260875
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780198260875.001.0001
Published in print:: 1996
Published Online:: 2012-03-22

This book provides a history of some of the main institutions of South African private law and in so doing explores the process through which integration of the English common law and the continental civil law came about in that jurisdiction. It provides an insight into the way the process of harmonization of private law has occurred in South Africa and may occur within the European Union. By analysing the historical evolution of the most important institutions of the law of obligations and the law of property the book demonstrates how the two legal traditions have been accommodated within one system. The starting point for each chapter is the ‘pure’ Roman-Dutch law as it was transplanted to the Cape of Good Hope in the years following 1652. The analysis focuses on how the Roman-Dutch law has been preserved, changed, modified, or replaced in the course of the 19th century when the Cape became a British colony; and on what happened after the creation of the union of South Africa in 1910. Another value of the book is that it offers chapters by South African private lawyers reflecting on the history of their subjects. It therefore constitutes the first stage in the writing of a history of substantive private law in South Africa. Private law in South Africa did not develop in a vacuum but as part of a wider political and social process.

The Roman Law of Trusts

David Johnston — 2012-03-22

Author:: David Johnston
ISBN:: 9780198252160
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780198252160.001.0001
Published in print:: 1988
Published Online:: 2012-03-22

Few legal institutions developed solely under the Roman Empire, but there is one which can provide a rare illustration of the emperors' involvement in building private law: although Roman law did not recognize a ‘trust’ in the same sense as it is used in common law today, it did develop a device — the fideicommissum — which achieved very similar ends. It has remained largely ignored, and yet it is an ideal case study in the evolution of law. As the most versatile institution of Roman inheritance law, it crucially affected the strategies of succession open to testators, and gives insights into a social history of testators' ambitions and legislative concerns. Over six centuries the trust expanded at the expense of established legal institutions, and with Justinian's reforms it finally became dominant. This book studies the history of the trust and its rise to prominence, with reference to the possible influence of the Roman ‘fideicommissum’.

The Oxford History of the Laws of England

John Baker — 2012-03-22

Author:: John Baker
ISBN:: 9780198258179
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780198258179.001.0001
Published in print:: 2003
Published Online:: 2012-03-22

This volume covers the years 1483–1558. It first considers constitutional developments, and addresses the question of whether there was a rule of law under King Henry VIII. In a period of supposed despotism and enhanced parliamentary power, protection of liberty was increasing and habeas corpus was emerging. The volume considers the extent to which the law was affected by the intellectual changes of the Renaissance, and how far the English experience differed from that of the Continent. It includes a study of the myriad jurisdictions in Tudor England and their workings and examines important procedural changes in the central courts which represent a revolution in the way that cases were presented and decided. The legal profession, its education, its functions, and its literature are examined, and the impact of printing upon legal learning and the role of case-law in comparison with law-school doctrine are addressed. Criminal law was becoming more focused during this period as a result of doctrinal exposition in the inns of court and occasional reports of trials. After major conflicts with the Church, major adjustments were made to the benefit of the clergy, and the privilege of sanctuary was all but abolished. The volume examines the law of persons in detail, addressing the impact of the abolition of monastic status, the virtual disappearance of villeinage, developments in the law of corporations, and some remarkable statements about the equality of women. The history of private law during this period is dominated by real property and particularly the Statutes of Uses and Wills (designed to protect the king's feudal income against the consequences of trusts) which are given a new interpretation. Leaseholders and copyholders came to be treated as full landowners with rights assimilated to those of freeholders. The land law of the time was highly sophisticated, and becoming more so, but it was only during this period that the beginnings of a law of chattels became discernible. There were also significant changes in the law of contract and tort, not least in the development of a satisfactory remedy for recovering debts.

The Oxford History of the Laws of England

R. H. Helmholz — 2012-03-22

Author:: R. H. Helmholz
ISBN:: 9780198258971
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780198258971.001.0001
Published in print:: 2004
Published Online:: 2012-03-22

This volume traces the reception and subsequent history of the canon law in England between 597 and 1649. It covers, amongst other topics, the Anglo-Saxon laws, both secular and spiritual; the establishment of consistory courts; and the fate of the canon law during and after the English reformation. Secondly, this volume addresses the subjects under ecclesiastical jurisdiction: civil procedure and the law of proof; monetary obligations and economic regulation; testamentary law and probate jurisdiction; tithes and spiritual dues; churches and the clergy; marriage and divorce; defamation; and crimes and criminal procedure. These subjects are examined using evidence from later medieval and early modern court records, and the volume seeks to place them within the context of formal canon law. The volume also places ecclesiastical jurisdiction within the context of English society and the English common law.

The New River

Bernard Rudden — 2012-03-22

Author:: Bernard Rudden
ISBN:: 9780198254973
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780198254973.001.0001
Published in print:: 1985
Published Online:: 2012-03-22

This book is a study of the New River Company. It gives a highly complex and comprehensive analysis of the complicated legal problems encountered from the company's inception in the in the first decade of the seventeenth century to its municipalization and conversion to a property company at the turn of the twentieth century. The problems of water supply, hygiene and even general business matters are examined in a relatively narrow framework. As s legal history, this book is full of technical terms. This book, however, is not without merits. It contains interesting chapters on shares, in which tracing the progress of some of the company stock through some of the various hands is discussed, as well as governance and finance yields.

A New Outline of the Roman Civil Trial

Ernest Metzger — 2012-03-22

Author:: Ernest Metzger
ISBN:: 9780198264743
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780198264743.001.0001
Published in print:: 1997
Published Online:: 2012-03-22

Roman litigation has long been a difficult subject for study, hampered by a lack of information concerning the practical operation of the civil courts. Using newly discovered evidence, this book presents a new interpretation of how civil trials in Classical Rome were commenced and brought to judgement. The new evidence adds to our knowledge of Roman courts, and the book uses this evidence to create an original contribution to the literature on Roman Civil procedure.

A Mixed Legal System in Transition

Elspeth Reid and David Carey Miller — 2012-03-22

Author:: Elspeth Reid, David Carey Miller
ISBN:: 9780748623358
Publisher:: Edinburgh University Press
Subjects:: Law, Legal History
DOI:: 10.3366/edinburgh/9780748623358.001.0001
Published in print:: 2005
Published Online:: 2012-03-22

This book considers the work of Professor Sir Thomas Smith QC (1915–1988) and, through that work, the development of Scots law as a mixed legal system. Smith was a leading figure in the revival of Scots law that began in the 1950s. Well-known internationally as a comparatist, he was the pioneer of the idea of a grouping of mixed legal systems. Yet in Scotland he was a controversial figure, whose advocacy of the civil law tradition was challenged and whose legacy is disputed. This volume is the first sustained attempt to assess Smith's career, and his writing, methodology, ideology and influence. The contributors approach their subject from different angles and in different ways. Two contributors are from other mixed legal systems (South Africa and Louisiana).

Leading Cases in the Common Law

A. W. Brian Simpson — 2012-03-22

Author:: A. W. Brian Simpson
ISBN:: 9780198262992
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780198262992.001.0001
Published in print:: 1996
Published Online:: 2012-03-22

This book offers a collection of chapters by arguably the most popular legal historian writing today. Most of the chapters have not been previously published, and those which have appeared previously have been re-written to make the collection read more coherently. The collection is centred upon the theme of the leading case — a case where the judgment has established a long-lasting or far reaching precedent in common law, and the author has selected a number of these cases in order to illustrate how the precedents established by the cases have little or nothing to do with the trials themselves.

Law Making and the Scottish Parliament

Elaine E Sutherland and Kay E Goodall — 2012-03-22

Author:: Elaine E Sutherland, Kay E Goodall
ISBN:: 9780748640195
Publisher:: Edinburgh University Press
Subjects:: Law, Legal History
DOI:: 10.3366/edinburgh/9780748640195.001.0001
Published in print:: 2011
Published Online:: 2012-03-22

This book offers a wide-ranging critical analysis of legislative developments in those areas of law and policy devolved to the Scottish Parliament under the devolution settlement. It begins with a brief account of the devolution settlement and summarises the themes emerging from the subsequent chapters. Thereafter, sixteen themed chapters, each dedicated to a discrete area of the law and written by an acknowledged expert in the field, provide critical evaluation of the Scottish Parliament's contribution, highlighting what it has achieved, what it has failed to do and what might be done in the future. This book provides a scholarly evaluation of a number of legislative achievements of Scotland's devolved parliament in its first decade.

Law in the Crisis of Empire 379-455 AD

Tony Honoré — 2012-03-22

Author:: Tony Honoré
ISBN:: 9780198260783
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780198260783.001.0001
Published in print:: 1998
Published Online:: 2012-03-22

This book is a work of reference, which also features an essay on the analysis of style, a contribution to the prosopography of the late Roman quaestorship and a reflection on the fall of the Western and the survival of the Eastern Roman Empire. The author examines the laws of a crucial period of the late Roman Empire (379–455 AD), a time when the West collapsed while the East survived. Wherever possible, the author assigns each law to the likely imperial quaestor who drafted it. This approach yields a list of office holders (Fasti), in which each quaestor is associated with the laws he drafted. The author shows why the Eastern Theodosian Code (429–438 AD), intended to restore the legal and administrative unity of the Roman Empire, came too late to save the West. The Palingenesia on an accompanying disk will enable scholars to read the texts chronologically and to judge the soundness of the arguments advanced.

Law and English Railway Capitalism 1825–1875

R. W. Kostal — 2012-03-22

Author:: R. W. Kostal
ISBN:: 9780198265672
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780198265672.001.0001
Published in print:: 1997
Published Online:: 2012-03-22

This is the first large scale historical treatment of the relationship between English law and the rise of a leading sector of 19th-century industrial enterprise. The book examines the impact of English common law and lawyers on the early steam railway industry. Grounded in a wide variety of legal and industrial source materials, the study's eight analytical narrative chapters examine a range of interactions between early railway capitalism and the evolving culture, doctrine, and procedures of Victorian lawyers. Subjects considered in depth include the legal ramifications of the great railway manias, law and the infiltration of the English countryside, railway accidents, corporate monopolism, and the organization of England's first corporate legal departments. Each chapter contributes to the book's general interpretation of the profound but ambiguous engagement of an antiquated but powerful legal system with a dynamic new industry.

An Introduction to the History and Sources of Jewish Law

2012-03-22

Author:: N. S.HechtB. S.JacksonLiverpool UniversityS. M.PassamaneckJewish Institute of Religion, Los AngelesDanielaPiattelliUniversita di SalernoAlfredoRabelloThe Hebrew University of Jerusalem
ISBN:: 9780198262626
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780198262626.001.0001
Published in print:: 1996
Published Online:: 2012-03-22

Jewish law has a history stretching from the early period to the modern State of Israel, encompassing: the Talmud, Geonic, and later codifications; the Spanish Golden Age; medieval and modern response; the Holocaust; and modern reforms. Fifteen distinct periods are separately studied in this volume, each one by a leading specialist, and the emphasis throughout is on the development of the institutions and sources of the law, providing teachers with the essential background material from which a variety of sources, from many different perspectives, may be taught. Most of the chapters are written to a common plan, with treatment of the political background of the period and the nature of Jewish judicial autonomy, the character (literary and legal) of the sources, the legal practice of the period, its principal authorities, and examples of characteristic features of the substantive law (especially in family law).

In the Highest Degree Odious

A. W. Brian Simpson — 2012-03-22

Author:: A. W. Brian Simpson
ISBN:: 9780198259497
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780198259497.001.0001
Published in print:: 1994
Published Online:: 2012-03-22

During World War II, just under 2,000 British citizens were detained without charge, trial, or term set, under Regulation 18B of the wartime Defence Regulations. Most of these detentions took place in the summer of 1940, soon after Winston Churchill became Prime Minister, when belief in the existence of a dangerous Fifth Column was widespread. Churchill, at first an enthusiast for vigorous use of the powers of executive detention, later came to lament the use of a power which was, in his words, ‘in the highest degree odious’. This book provides the first comprehensive study of Regulation 18B and its precursor in World War I, Regulation 14B. Based on extensive use of primary sources, it describes the complex history of wartime executive detention: the purposes which it served, the administrative procedures and safeguards employed, the conflicts between the Home Office and the Security Service which surrounded its use, the part played by individuals, by Parliament, and by the courts in restraining abuse of executive power, and the effect of detention upon the lives of the individuals concerned, very few of whom constituted any threat to national security. Much of what was done was kept secret at the time, and even today the authorities continue to refuse access to many of the papers which have escaped deliberate destruction. This study is the first to attempt to penetrate the veil of secrecy and tell the story of the gravest invasion of civil liberty which has occurred in Britain this century.

A History of the Land Law

A. W. B. Simpson — 2012-03-22

Author:: A. W. B. Simpson
ISBN:: 9780198255376
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780198255376.001.0001
Published in print:: 1986
Published Online:: 2012-03-22

This book provides an account of the historical development of the common law of landed property. Work published since the first edition of this text is taken into account, and the treatment of the nineteenth century period has been enlarged.

A History of the Common Law of Contract

A. W. B. Simpson — 2012-03-22

Author:: A. W. B. Simpson
ISBN:: 9780198255734
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780198255734.001.0001
Published in print:: 1987
Published Online:: 2012-03-22

The common law is one of the two major and successful systems of law developed in Western Europe, and in one form or another is now in force not only in the country of its origin but also in the United States, large parts of the British Commonwealth and former parts of the Empire. Perhaps its most typical product is English Contract Law, developed continuously since the birth of the common law almost wholly by judicial decision. Although it is in its modern form primarily a product of the nineteenth century, the common law of contract as we know it developed around the action of assumpsit which evolved at the close of the fourteenth century, and many of its characteristic doctrines first emerged in the sixteenth and seventeenth centuries. This book, which takes the story up to 1677 (the date of Statute of Frauds) forms the first part of the history of contract law, and is written primarily from a doctrinal standpoint.

A History of Private Law in Scotland: Volume 2: Obligations

Kenneth Reid and Reinhard Zimmermann — 2012-03-22

Author:: KennethReidUniversity of EdinburghReinhardZimmermannUniversity of Regensburg
ISBN:: 9780198299288
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law, Legal History
DOI:: 10.1093/acprof:oso/9780198299288.001.0001
Published in print:: 2000
Published Online:: 2012-03-22

Scotland has a special claim for the attention of comparative lawyers, of legal historians, and of those who seek to identify a common core in European private law or to develop a new jus commune. For Scotland stands at the intersection of the two great traditions of European law—of the law of Rome, received and developed in Continental Europe, and of the law which originated in England but was exported throughout the British Empire. In Scotland, uniquely in Europe, there is to be found a fusion of the civil law and the common law. Law in Scotland has a long history, uninterrupted either by revolution or by codification. It is rich in source material, both printed and archival. Yet hitherto the history of legal doctrine has been relatively neglected. This work is the first study in the field of private law. Its method is to take key topics from the law of obligations and the law of property and to trace their development from earliest times to the present day. It shows that the reception of civil law was slow but profound, beginning in the medieval period and continuing until the 18th century. Canon law was also influential. This was flanked by two receptions from England, of Anglo-Norman feudalism in the 12th century and beyond, and, more enduringly, of aspects of English common law in the 19th and 20th centuries. In addition there was much that was home-grown. Over time this disparate mixture was transformed by legal science into a coherent whole.

A History of Private Law in Scotland

Reinhard Zimmermann and Kenneth Reid — 2012-03-22

Author:: Reinhard Zimmermann, Kenneth Reid
ISBN:: 9780198267782
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law, Legal History
DOI:: 10.1093/acprof:oso/9780198267782.001.0001
Published in print:: 2000
Published Online:: 2012-03-22

Law in Scotland has a long history, uninterrupted either by revolution or by codification. This work is a detailed and systematic study in the field of Scottish private law. It takes key topics from the law of obligations and the law of property and traces their development from the earliest times to the present day.

Harry A. Blackmun

Tinsley Yarbrough — 2012-03-22

Author:: Tinsley Yarbrough
ISBN:: 9780195141238
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780195141238.001.0001
Published in print:: 2008
Published Online:: 2012-03-22

Justice Harry A. Blackmun, author of the majority opinion in Roe vs. Wade, was the pivotal figure in one of the most contentious decisions in Supreme Court history and indeed the most divisive issue facing the Court today. This book is a penetrating account of the life and career of one of the most outspoken and complicated figures of the modern Supreme Court. As a justice, Blackmun stood at the pinnacle of the American judiciary. Yet when he took his seat on the Court, Justice Blackmun felt “almost desperate,” overwhelmed with feelings of self-doubt and inadequacy over the immense responsibilities before him. Blackmun had overcome humble roots to achieve a Harvard education, success as a Minneapolis lawyer and resident counsel to the prestigious Mayo Clinic. But growing up in a financially unstable home with a frequently unemployed father and an emotionally fragile mother left a permanent mark on the future justice. All his life, Harry Blackmun considered himself one of society's outsiders, someone who did not “belong.” Remarkably, though, that very self-image instilled in the justice, throughout his career, a deep empathy for society's most vulnerable outsiders — women faced with unwanted pregnancies, homosexuals subjected to archaic laws, and death-row inmates. To those who saw his career as the constitutional “odyssey” of a conservative jurist gradually transformed into a champion of the underdog, Blackmun had a ready answer: he had not changed; the Court and the issues before them changed.

The Guardian of Every Other Right

James W. Ely — 2012-03-22

Author:: James W. Ely
ISBN:: 9780195323337
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780195323337.001.0001
Published in print:: 2007
Published Online:: 2012-03-22

This book chronicles the pivotal role of property rights in fashioning the U.S. constitutional order from the colonial era to the current controversies over eminent domain and land use controls. It emphasizes the interplay of law, ideology, politics, and economic change in shaping constitutional thought, and provides a historical perspective on the contemporary debate about property rights. Since publication of the original edition of this work, both academic and popular interest in the constitutional rights of property owners has markedly increased. Now in its third edition, this text has been revised to incorporate a full treatment of important judicial decisions, notable legislation, and scholarship since the second edition appeared in 1997. In particular, the book provides helpful background and context for understanding the controversial Kelo decision relating to the exercise of eminent domain power for “public use.” Covering the entire history of property rights in the United States, this new edition continues to fill a major gap in the literature of constitutional history, and is an ideal text for students of legal and constitutional history.

The Creation of the Ius Commune

John W. Cairns and Paul J. du Plessis — 2012-03-22

Author:: John W. Cairns, Paul J. du Plessis
ISBN:: 9780748638970
Publisher:: Edinburgh University Press
Subjects:: Law, Legal History
DOI:: 10.3366/edinburgh/9780748638970.001.0001
Published in print:: 2010
Published Online:: 2012-03-22

This book surveys the traditional classifications of private law to establish the cognitive techniques used by medieval Italian and French jurists to transform Roman law into the ius commune of Western Europe. It discusses in detail how medieval scholars reacted to the casuistic discussions in the inherited Roman texts, particularly the Digest of Justinian. It shows how they developed medieval Roman law into a system of rules that formed a universal common law for Western Europe. Because there has been little research published in English beyond grand narratives on the history of law in Europe, this book fills a gap in the literature. With a focus on how the medieval Roman lawyers systematised the Roman sources through detailed discussions of specific areas of law, it considers: the sources of medieval law and how to access them; the development from cases to rules; medieval lawyers' strategies for citing each other and their significance; and the growth of a conceptual approach to the study of law.

Coercion to Compromise

Mary E. Vogel — 2012-03-22

Author:: Mary E. Vogel
ISBN:: 9780195101751
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780195101751.001.0001
Published in print:: 2007
Published Online:: 2012-03-22

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.

Beyond Dogmatics

John W. Cairns and Paul J. du Plessis — 2012-03-22

Author:: John W. Cairns, Paul J. du Plessis
ISBN:: 9780748627936
Publisher:: Edinburgh University Press
Subjects:: Law, Legal History
DOI:: 10.3366/edinburgh/9780748627936.001.0001
Published in print:: 2007
Published Online:: 2012-03-22

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.

Advocacy and the Making of the Adversarial Criminal Trial 1800–1865

David J. A. Cairns — 2012-03-22

Author:: David J. A. Cairns
ISBN:: 9780198262848
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780198262848.001.0001
Published in print:: 1999
Published Online:: 2012-03-22

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.

Lords of the Land

Mark Hickford — 2012-01-19

Author:: Mark Hickford
ISBN:: 9780199568659
Publisher:: Oxford University Press
Subjects:: Law, Legal History, Philosophy of Law
DOI:: 10.1093/acprof:oso/9780199568659.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

The recognition and allocation of indigenous property rights have long posed complex questions for the imperial powers of the mid-nineteenth century and their modern successors. Recognizing rights of property raises questions about pre-existing indigenous authority and power over land that continue to trouble the people and governments of settler states. Through focusing on the settlement of New Zealand during the critical period of the 1830s through to the early 1860s, this book offers a fresh assessment of the histories of indigenous property rights and the jurisprudence of empire. It shows how native title became not only a key construct for relations between Empire and tribes, but how it acted more broadly as a constitutional frame within which discourses of political authority formed and were contested at the heart of Empire and the colonial peripheries. Native title thus becomes another episode in imperial political history in which increasingly fierce and highly polemical contestation burst into violence. Native title explodes as a form of civil war that lays the foundation (by Maori ever after challenged) for revised constitutional orders. This book considers histories of indigenous property rights not only as the stuff of entwined streams of a law of nations and constitutional theory but also as exemplars of the politics of negotiability — engaging relations of struggle and ambition for power, together with the openness and limits of incoming settler polities towards indigenous polities and laws. This study is an examination of rights as instruments of analysis and political discourse, constructed and contested in and through time. Anchored in the striking experiences of New Zealand and the politics of trans-oceanic empire, it tells a tale of indigenous political autonomy and how the vocabularies of property rights mediated relations between empire and the indigenous political communities found in newly settled lands.

Aboriginal Title

P.G. McHugh — 2012-01-19

Author:: P.G. McHugh
ISBN:: 9780199699414
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Legal History
DOI:: 10.1093/acprof:oso/9780199699414.001.0001
Published in print:: 2011
Published Online:: 2012-01-19

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.

A Distinct Judicial Power

Scott Douglas Gerber — 2011-09-22

Author:: Scott Douglas Gerber
ISBN:: 9780199765874
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law, Legal History
DOI:: 10.1093/acprof:oso/9780199765874.001.0001
Published in print:: 2011
Published Online:: 2011-09-22

This book provides a critical analysis of the origins of judicial independence in the United States. Part I examines the political theory of an independent judiciary. The first chapter begins by tracing the intellectual origins of a distinct judicial power from Aristotle's theory of a mixed constitution to John Adams's modifications of Montesquieu. Chapter 2 describes the debates during the framing and ratification of the federal Constitution regarding the independence of the federal judiciary. Part II, the bulk of the book, chronicles how each of the original thirteen states and their colonial antecedents treated their respective judiciaries. This portion, presented in thirteen separate chapters, brings together a wealth of information (charters, instructions, statutes, etc.) about the judicial power between 1606 and 1787, and sometimes beyond. Part III, the concluding segment, explores the influence the colonial and early state experiences had on the federal model that followed and on the nature of the regime itself. It explains how the political theory of an independent judiciary examined in Part I, and the various experiences of the original thirteen states and their colonial antecedents chronicled in Part II, culminated in Article III of the U.S. Constitution. It also explains how the principle of judicial independence embodied by Article III made the doctrine of judicial review possible, and committed that doctrine to the protection of individual rights.

The Roman Foundations of the Law of Nations

Benedict Kingsbury and Benjamin Straumann — 2011-05-01

Author:: BenedictKingsburyMurry and Ida Becker Professor of Law and Director of the Institute for International Law and Justice at New York University School of Lawhttp://its.law.nyu.edu/facultyprofiles/profile.cfm?section=pubs&personID=20046BenjaminStraumannAlberico Gentili Fellow at New York University
ISBN:: 9780199599875
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780199599875.001.0001
Published in print:: 2010
Published Online:: 2011-05-01

This book makes the under-explored argument that modern international law was built on the foundations of Roman law and Roman imperial practice. A pivotal figure in this enterprise was the Italian Protestant Alberico Gentili (1552–1608), the great Oxford Roman law scholar and advocate, whose books and legal opinions on law, war, empire, embassies, and maritime issues framed the emerging structure of inter-state relations in terms of legal rights and remedies drawn from Roman law, and built on Roman and scholastic theories of just war and imperial justice. The chapters examine the theory and practice of justice and law in Roman imperial wars and administration; Gentili's use of Roman materials; the influence on Gentili of Vitoria and Bodin and his impact on Grotius and Hobbes; and the ideas and influence of Gentili and other major thinkers from the 16th to the 18th centuries on issues, such as preventive self-defence, punishment, piracy, Europe's political and mercantile relations with the Ottoman Empire, commerce and trade, European and colonial wars and peace settlements, reason of state, justice, and the relations between natural law and observed practice in providing a normative and operational basis for international relations and what became international law. This book explores ways in which both the theory and the practice of international politics was framed in ways that built on these Roman private law and public law foundations, including concepts of rights. This history of ideas has continuing importance as European ideas of international law and empire have become global, partly accepted and partly contested elsewhere in the world.

Justinian's Digest: Character and Compilation

Tony Honoré — 2011-05-01

Author:: Tony Honoré
ISBN:: 9780199593309
Publisher:: Oxford University Press
Subjects:: Law, Legal History, Comparative Law
DOI:: 10.1093/acprof:oso/9780199593309.001.0001
Published in print:: 2010
Published Online:: 2011-05-01

This book is a study of the character and compilation of Justinian's Digest, the main volume of Justinian's Corpus Iuris Civilis (528–534 ad). This is often considered as one of the most influential works in the history of Western culture. It remains significant, partly because it is still a part of the law in six countries in Southern Africa, and partly because of its role in the evolution over 1,500 years of the theory and practice of human rights. The book gives a detailed account of the probable methods used in the compilation of the Digest and distinguishes the respective roles of imperial ministers, law professors, and advocates. It also examines the broader issues raised by the Digest's creation — how it was conceived by its compilers, its purpose, and its impact.

A History of Civil Litigation

Frank J. Vandall — 2011-05-01

Author:: Frank J. Vandall
ISBN:: 9780195391916
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law, Legal History
DOI:: 10.1093/acprof:oso/9780195391916.001.0001
Published in print:: 2010
Published Online:: 2011-05-01

This book studies the expansion of civil liability from 1466 to 1980, and the cessation of that growth in 1980. It evaluates the creation of tort causes of action during the period of 1400–1980. Re evaluation and limitation of those developments from 1980, to the present, are specifically considered. One of the unique focuses of this book is to argue that civil justice no longer rests on historic foundations such as fairness and impartiality, but has shifted to power and influence. Reform in the law (legislative, judicial, and regulatory) is today driven by financial interests. This book uses product cases and policies for much of its argument. These policies can be summarized as a shift from a balanced playing field, to one that favors injured consumers. The strict liability foreshadowed by Judge Traynor, in Escola v. Coca Cola (1944), was not adopted until 1962, when Traynor wrote the majority opinion in Greenman v. Yuba Power Products for the California Supreme Court. Another unique focus of this book is the role of persuasive non-governmental agencies, such as the American Law Institute, in reforming and shaping civil justice. Never has it been less true that we live under the rule of law. Congress, agencies and the courts make the law, but they are driven by those who have a large financial stake in the outcome. Today, those with power shape the character of products liability law, at every turn.

Learned Hand

Gerald Gunther — 2011-01-01

Author:: Gerald Gunther
ISBN:: 9780195377774
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law, Legal History
DOI:: 10.1093/acprof:oso/9780195377774.001.0001
Published in print:: 2010
Published Online:: 2011-01-01

Billings Learned Hand was one of the most influential judges in America. This book provides a complete and intimate account of the professional and personal life of Learned Hand. It conveys the substance and range of Hand's judicial and intellectual contributions. The book's author, a former law clerk for Hand, reviewed much of Hand's published work, opinions, and correspondence for the book. The book describes Hand's cases, and discusses the judge's professional and personal life as interconnected with the political and social circumstances of the times in which he lived. Born in 1872, Hand served on the United States District Court for the Southern District of New York and the United States Court of Appeals for the Second Circuit. He clearly crafted and delivered thousands of decisions in a wide range of cases through extensive, conscientious investigation and analysis, while at the same time exercising wisdom and personal detachment. His opinions are still widely quoted today, and will remain as an everlasting tribute to his life and legacy.

The Oxford History of the Laws of England: Volume XII

2010-05-01

Author:: William Cornish, J Stuart Anderson, Ray Cocks, Michael Lobban, Patrick Polden, Keith Smith
ISBN:: 9780199258826
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780199258826.001.0001
Published in print:: 2010
Published Online:: 2010-05-01

The Oxford History of the Laws of England: Volume XII 1820-1914 Private Law is one of three volumes devoted to that period of relative peace across Europe running from the defeat of Napoleon to the terrible war against the two Kaisers. Volume XII deals with the major elements of its inherited Private Law and the manner in which they were re-fitted for a more complex age, giving larger understandings of property, contract, commercial law, and tort. Detailed footnoting to historical sources and literature occurs in the course of the narrative. Each volume has tables of cases and of statutes covering the materials in that volume. Volume XII also includes a Names Index and a Subject Index for the volume.

The Oxford History of the Laws of England: Volume XI

2010-05-01

Author:: William Cornish, J Stuart Anderson, Ray Cocks, Michael Lobban, Patrick Polden, Keith Smith
ISBN:: 9780199258819
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780199258819.001.0001
Published in print:: 2010
Published Online:: 2010-05-01

The Oxford History of the Laws of England: Volume XI 1820-1914 English Legal System is one of three volumes devoted to that period of relative peace across Europe running from the defeat of Napoleon to the terrible war against the two Kaisers. Volume XI is devoted mainly to: the sources of English law; the intellectual frameworks and institutions within which they were understood; the constitutional arrangements for the legislature; central and local executives; and the judicial system, this last providing the crucial core from which professional lawyers operated. Detailed footnoting to historical sources and literature occurs in the course of the narrative. Each volume has Tables of Cases and of Statutes covering the materials in that Volume. Volume XI also includes a Names Index and a Subject Index for the volume.

The Oxford History of the Laws of England

2010-05-01

Author:: William Cornish, J Stuart Anderson, Ray Cocks, Michael Lobban, Patrick Polden, Keith Smith
ISBN:: 9780199239757
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780199239757.001.0001
Published in print:: 2010
Published Online:: 2010-05-01

The Oxford History of the Laws of England: Volume XIII 1820-1914 Fields of Development is one of three volumes devoted to that period of relative peace across Europe running from the defeat of Napoleon to the terrible war against the two Kaisers. Volume XIII takes up five subject areas — some primarily public in orientation, some private, some increasingly mixed — where, between 1820 and 1914, any original clay was substantially remoulded. The volume covers the criminal law and its techniques of detection, prosecution, and punishment; provisions for social aid in accordance with the earnest moral endeavour of Victorian thought and action; family law as it came to apply both to the interests of the propertied classes and the great body of people supported by manual labour; labour law as it faced class conflict through the demands and actions of employers and trade unions; and the development of conceptions that would protect individuals against external intrusions upon their personal lives and allow them exclusive control over the results of their intellectual endeavours. Detailed footnoting to historical sources and literature occurs in the course of the narrative. Each volume has tables of cases and of statutes covering the materials in that volume.

Islamic Natural Law Theories

Anver M. Emon — 2010-05-01

Author:: Anver M. Emon
ISBN:: 9780199579006
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law, Legal History
DOI:: 10.1093/acprof:oso/9780199579006.001.0001
Published in print:: 2010
Published Online:: 2010-05-01

This book offers the first sustained jurisprudential inquiry into Islamic natural law theory. It introduces readers to competing theories of Islamic natural law theory based on close readings of Islamic legal sources from as early as the ninth and tenth centuries C.E. In popular debates about Islamic law, modern Muslims perpetuate an image of Islamic law as legislated by God, to whom the devout are bound to obey. Reason alone cannot obligate obedience; at most it can confirm or corroborate what is established by source texts endowed with divine authority. This book shows, however, that premodern Sunni Muslim jurists were not so resolute. They asked whether and how reason alone can be the basis for asserting the good and the bad, and thereby obligations and prohibitions of the Shari'a. They theorized about the authority of reason amidst competing theologies of God. For these jurists, nature became the link between the divine will and human reason. Nature is the product of God's creative power. Nature is created by God and reflects his goodness; consequently nature is fused with both fact and value. As a divinely created good, nature can be investigated to reach both empirical and normative conclusions about the good to be pursued. By recasting the Islamic legal tradition in terms of legal philosophy, the book sheds substantial light on an uncharted tradition of natural law theory and offers critical insights into contemporary global debates about Islamic law and reform.

From Sword to Shield

Steven A. Bank — 2010-05-01

Author:: Steven A. Bank
ISBN:: 9780195326192
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780195326192.001.0001
Published in print:: 2010
Published Online:: 2010-05-01

The U.S. corporate income tax — and in particular the double taxation of corporate income — has long been one of the most criticized and stubbornly persistent aspects of the federal revenue system. Unlike in most other industrialized countries, corporate income is taxed twice, first at the entity level and again at the shareholder level when distributed as a dividend. The conventional wisdom has been that this double taxation was part of the system's original design over a century ago and has survived despite withering opposition from business interests. In both cases, history tells another tale. Double taxation as it is known today did not appear until several decades after the corporate income tax was first adopted. Moreover, it was embraced by corporate representatives at the outset and in subsequent years businesses have been far more ambivalent about its existence than is popularly assumed. From Sword to Shield: The Transformation of the Corporate Income Tax, 1861 to Present is the first historical account of the evolution of the corporate income tax in America. It explains the origins of corporate income tax and the political, economic, and social forces that transformed it from a sword against evasion of the individual income tax to a shield against government and shareholder interference with the management of corporate funds.

Broken Engagements

Saskia Lettmaier — 2010-05-01

Author:: Saskia Lettmaier
ISBN:: 9780199569977
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780199569977.001.0001
Published in print:: 2010
Published Online:: 2010-05-01

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.

America and the Law of Nations 1776-1939

Mark Weston Janis — 2010-05-01

Author:: Mark Weston Janis
ISBN:: 9780199579341
Publisher:: Oxford University Press
Subjects:: Law, Public International Law, Legal History
DOI:: 10.1093/acprof:oso/9780199579341.001.0001
Published in print:: 2010
Published Online:: 2010-05-01

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.

Some Landmarks of Twentieth Century Contract Law

Guenter Treitel — 2010-01-01

Author:: Guenter Treitel
ISBN:: 9780199255757
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Legal History
DOI:: 10.1093/acprof:oso/9780199255757.001.0001
Published in print:: 2002
Published Online:: 2010-01-01

This book discusses three of the most important developments in the law of contract in the 20th century. A short introduction explains the choice of topics and gives an account of the project (initiated in the 1960s and later abandoned) to codify this branch of the law. Chapter 1 deals with agreements to vary contracts and in particular with obstacles to the legal effectiveness of such agreements presented by the doctrine of consideration, under which something of value must be given for a promise to make it legally binding. It explains how the courts have mitigated these difficulties, especially by using the concepts of ‘estoppel’ and ‘practical benefit’. Chapter 2 starts with an account of the doctrine of privity, by which a contract can be enforced only by and against a party to it; and then considers attempts to erode that doctrine by the courts (e.g., by use of the concepts of trust, tort, vicarious immunity, and bailment on terms); by contractual draftsmanship (e.g., by so-called ‘Himalaya Clauses’); and by legislation such as the Contracts (Rights of Third Parties) Act 1999. Chapter 3 deals with the classification of contractual terms into conditions, warranties, intermediate terms and fundamental terms; the distinctions are discussed mainly in the context of the question whether the breach of a term by one party justifies rescission of the contract by the other.

Private Property and Abuse of Rights in Victorian England

Michael Taggart — 2010-01-01

Author:: Michael Taggart
ISBN:: 9780199256877
Publisher:: Oxford University Press
Subjects:: Law, Human Rights Law, Legal History
DOI:: 10.1093/acprof:oso/9780199256877.001.0001
Published in print:: 2002
Published Online:: 2010-01-01

The case of The Mayor, Aldermen and Burgesses of the Borough of Bradford v Pickles was the first to establish the principle that it is not unlawful for a property owner — in this case, Edward Pickles — to exercise his property rights maliciously and to the detriment of others or the public interest. Though controversial at the time, today it is often invisible and taken for granted. This book explores why the common law, in contrast to civil law systems, developed in this way. During the industrial revolution, the town of Bradford in England, and with it the demand for water for industrial and domestic purposes, grew rapidly. The first part of the book explores, through an analysis of correspondence, records, and newspaper reports, the development of the Bradford water supply and the genesis of the dispute that ultimately flared into litigation at the end of the 19th century. Several aspects of the case are of enduring doctrinal importance 100 years on. The controversial and potent common law principle of interpreting statutes so as to protect property rights wherever possible is examined in depth, as is the legal uncertainty of subterranean water rights in the 19th century. The book also explains the common lawyers' refusal to recognise a continental-style doctrine of abuse of rights and the courts' failure to develop a prima facie tort doctrine to curb maliciously inspired behaviour.

The Origins of Adversary Criminal Trial

John H. Langbein — 2010-01-01

Author:: John H. Langbein
ISBN:: 9780199287239
Publisher:: Oxford University Press
Subjects:: Law, Criminal Law and Criminology, Legal History
DOI:: 10.1093/acprof:oso/9780199287239.001.0001
Published in print:: 2005
Published Online:: 2010-01-01

The adversary system of trial, now the defining feature of Anglo-American criminal procedure, developed late in English legal history. For centuries, defendants were forbidden to have trial counsel. Prosecution counsel was allowed but seldom used. The criminal trial was meant to be a lawyer-free occasion at which the defendant could hear the accusing evidence and respond to it in person. The transformation from lawyer-free to lawyer-dominated criminal trials happened within the space of about a century, from the 1690s to the 1780s. This book explains how the lawyers captured the trial. In addition to conventional legal sources, the book draws upon a rich vein of contemporary pamphlet accounts about trials in London’s Old Bailey. The book also mines these novel sources to provide the first detailed account of the formation of the law of criminal evidence. Responding to menacing prosecutorial initiatives (notably reward-seeking thieftakers and crown witnesses testifying to save their own necks), the judges of the 1730s decided to allow the defendant to have counsel to cross-examine accusing witnesses. By restricting defense counsel to the work of examining and cross-examining witnesses, the judges intended that the accused would still need to respond in person to the charges against him. But defense counsel manipulated the dynamics of adversary procedure to defeat the judges’ design, ultimately silencing the accused and transforming the very purpose of the criminal trial. Trial ceased to be an opportunity for the accused to speak, and became instead an occasion for defense counsel to test the prosecution case.

On Common Laws

H. Patrick Glenn — 2010-01-01

Author:: H. Patrick Glenn
ISBN:: 9780199227655
Publisher:: Oxford University Press
Subjects:: Law, Comparative Law, Legal History
DOI:: 10.1093/acprof:oso/9780199227655.001.0001
Published in print:: 2007
Published Online:: 2010-01-01

The concept of common law has been one of the most important conceptual instruments of the western legal tradition, but it has been neglected by legal theory and legal history for the last two centuries. There were many common laws in Europe, including what is known in English as the common law, yet they have never previously been studied as a general phenomenon. Until the 19th century, the common laws of Europe lived in constant interaction with the particular laws which prevailed in their territories, and with one another. Common law was the main instrument of conciliation of laws which were drawn from different sources, though applicable on a given territory. Claims of universality could be, and were, reconciled with claims of particularity. Nineteenth and 20th century legal theory taught that law was the exclusive product of the state, yet common laws continued to function on a world-wide basis throughout the entire period of legal nationalism. As national legal exclusivity is increasingly challenged by the process of globalization, the concept of common law can be looked to once again as a means of conceptualization and justification of law beyond the state, while still supporting state and other local forms of normativity.

A Life of H.L.A. Hart

Nicola Lacey — 2010-01-01

Author:: Nicola Lacey
ISBN:: 9780199202775
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780199202775.001.0001
Published in print:: 2006
Published Online:: 2010-01-01

This book recounts the life of H. L. A. Hart, the pre-eminent legal philosopher of the 20th century, and sheds light on the genesis of Hart's ideas and the scale of his contribution to legal and political philosophy. Following Hart's life from modest origins as the son of Jewish tailor parents in Yorkshire to worldwide fame as the most influential English-speaking legal theorist of the post-War era, the book traces his successive metamorphoses; from Yorkshire schoolboy to Oxford scholar, from government intelligence officer to Professor of Jurisprudence, and from awkward bachelor to family figurehead. In the tradition of Ray Monk's biography of Wittgenstein, the book paints an absorbing picture of intellectual and psychological development, of a mind struggling to cope with intellectual self-doubt, uncertain sexuality, a difficult marriage, and an anti-semitic society. This raises fascinating questions about the nature of intellectual creativity. In depicting the evolution of Hart's life and mind, the book provides a vivid recreation of both the intellectual and social climate of Oxford in the post-War era, and develops an intellectual history of trends in 20th century legal, social, philosophical, and political thought.

The Law's Two Bodies

John Baker — 2010-01-01

Author:: John Baker
ISBN:: 9780199245185
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780199245185.001.0001
Published in print:: 2001
Published Online:: 2010-01-01

This book aims to contribute to the understanding of the character of the common law tradition. The common law is almost universally regarded as a system of case-law, increasingly supplemented by legislation, but this is only partly true. There is an extensive body of lawyers' law, which has a real existence outside the formal sources, but is seldom acknowledged or discussed either by theorists or legal historians. This will still be so even when every judicial decision is electronically accessible. In the heyday of the inns of court, this second body of law was partly expressed in ‘common learning’, a corpus of legal doctrine handed on largely by oral tradition and a system of education informing the mind of every common lawyer. That common learning emanated from a law school in which the judges actively participated, and in which the lecturers of one generation provided the judiciary of the next. Some of it was written down, though the texts were until recently forgotten, and its importance was overlooked by historians as a result of changes in the common-law system during the early-modern period. Other forms of informal law may be seen at work in other times and contexts. Although judicial decisions will always remain prime sources of legal history, as well as of law, the other body of legal thought and practice is equally ‘law’ in that it influences lawyers and has real consequences. Neither the history nor the present working of the common law can be understood without acknowledging its importance.

Jurists Uprooted

Jack Beatson and Reinhard Zimmermann — 2010-01-01

Author:: JackBeatsonOne of Her Majesty's Judges of the Queen's Bench Division of the High Court, formerly Rouse Ball Professor of English Law, University of Cambridge, and Honorary Fellow of Merton College, OxfordReinhardZimmermannDirector of the Max Planck Institute of Comparative Private Law and Private International Law, Hamburg, and Professor of Private Law, Roman Law, and Comparative Legal History at the University of Regensburg
ISBN:: 9780199270583
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780199270583.001.0001
Published in print:: 2004
Published Online:: 2010-01-01

Recent years have seen a growing body of literature on the contribution of scientists, historians, and literary and artistic figures who were forced to leave Germany and Austria after Adolf Hitler came to power. This book is the first study of the important contribution of refugee and émigré legal scholars to the development of English law. Those considered in the book are: Ernst Joseph Cohn, David Daube, Rudolf Graupner, Max Grünhut, Hermann Kantorowicz, Otto Kahn-Freund, Hersch Lauterpacht, Gerhard Leibholz, Kurt Lipstein, Francis A. Mann, Hermann Mannheim, Lassa Oppenheim, Otto Prausnitz, Fritz Robert Pringsheim, Gustav Radbruch, Clive Schmitthoff, Fritz Heinrich Schulz, Georg Schwarzenberger, Walter Ullmann, Martin Wolff, and Wolfgang Friedmann. The scene is set by two introductory chapters which explore the general background to the exodus of the émigré scholars from Germany, and their arrival in the United Kingdom. The volume then moves on to analyse the scholars' backgrounds, histories, and intellectual bent as individuals, evaluating their work and its impact on legal scholarship in both England and Germany. In those subjects where the influence of these lawyers was particularly strong — public and private international law, Roman law, and comparative law — it considers how far, collectively, these German- and Austrian-educated refugees and émigrés shaped the development of the law. There are also a number of personal memoirs, including one by the surviving member of the group, Kurt Lipstein.

A Historical Introduction to the Law of Obligations

David Ibbetson — 2010-01-01

Author:: David Ibbetson
ISBN:: 9780198764113
Publisher:: Oxford University Press
Subjects:: Law, Law of Obligations, Legal History
DOI:: 10.1093/acprof:oso/9780198764113.001.0001
Published in print:: 2001
Published Online:: 2010-01-01

The English law of obligations has developed over most of the last millennium without any major discontinuity. Through this period each generation has built on the law of its predecessors, manipulating it so as to avoid its more inconvenient consequences and adapting it piecemeal to social and economic changes. Sometimes fragments borrowed from other jurisdictions have been incorporated into the fabric of English law; from time to time ideas developed elsewhere have, at least temporarily, imposed a measure of structure on a common law otherwise messy and inherently resistant to any stable ordering. The book exposes the historical layers beneath the modern rules and principles of contract, tort, and unjust enrichment. Small-scale changes caused by lawyers successfully exploiting procedural advantages in their clients' interest are juxtaposed alongside changes caused by friction along the boundaries of these principal legal categories; fossilized remnants of old doctrines jostle with newer ideas in a state of half-consistent tension; loose-knit rules of equity developed in the Chancery infiltrate themselves into more tightly controlled common law structures. The result is a system shot through with inconsistencies and illogicalities, but with the resilience to adapt as necessary to Take account of shifting pressures and changing circumstances.

Frederick Pollock and the English Juristic Tradition

Neil Duxbury — 2010-01-01

Author:: Neil Duxbury
ISBN:: 9780199270224
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780199270224.001.0001
Published in print:: 2004
Published Online:: 2010-01-01

Until the later decades of the 20th century, law developed little as an academic discipline in England. One exceptional period of intellectual growth, however, was the late-Victorian era, when a number of brilliant and now celebrated jurists produced works and devised projects which had a crucial impact on the development of English legal thought. Among this band of jurists was the great legal treatise writer, historian, and editor, Frederick Pollock. Compared with many of his contemporaries, however, Pollock has been largely overlooked by modern legal historians. Drawing upon a wide selection of sources, the author offers a detailed picture of this enigmatic figure, examining Pollock’s career, jurisprudence, philosophy of the common law, treatise writing, and editorial initiatives, and shows that Pollock’s contribution to the development of English law and juristic inquiry is both complex and crucial.

Family Law in the Twentieth Century

Stephen Cretney — 2010-01-01

Author:: Stephen Cretney
ISBN:: 9780199280919
Publisher:: Oxford University Press
Subjects:: Law, Legal History, Family Law
DOI:: 10.1093/acprof:oso/9780199280919.001.0001
Published in print:: 2005
Published Online:: 2010-01-01

The law governing family relationships has changed dramatically in the past one hundred years. This book is a study of the pressures and processes which led to those changes. It examines the work of individuals and organisations campaigning for change, and the (often ignored) influence of officials in government and (in particular) the Parliamentary draftsmen. It gives particular attention to the pressures for compromise which have so often influenced the otherwise difficult to understand legislation. The book makes extensive use of archival material and of the results of empirical research, and tells the stories of the sometimes rather eccentric individuals who have had an impact on the law-making process. Although the book focuses on the twentieth century, it reaches back into earlier periods when relevant to later developments.

A Continental Distinction in the Common Law

J.W.F. Allison — 2010-01-01

Author:: J.W.F. Allison
ISBN:: 9780198298656
Publisher:: Oxford University Press
Subjects:: Law, Comparative Law, Legal History
DOI:: 10.1093/acprof:oso/9780198298656.001.0001
Published in print:: 2000
Published Online:: 2010-01-01

The development of an autonomous English public law has been accompanied by persistent problems — a lack of systematic principles, dissatisfaction with judicial review procedure, and uncertainty about the judicial role. It has provoked a continuing debate on the desirability of distinguishing between basic categories of public and private law. In this debate, a historical and comparative perspective has been lacking. By way of a comparative historical jurisprudence and a Weberian method, this book introduces such a perspective from which to view the problematic English distinction between public and private law as a legal transplant from the Continental civil law to the English common law. It provides a novel application of that method to the distinction's contrasting development in England and France. It compares the relatively recent emergence of a significant English distinction with the entrenchment of the traditional and influential French distinction demarcating the leading system of droit administratif developed by the Conseil d'Etat. Emphasising systemic interconnections between theory, institutions, and judicial procedure in the development of legal system, it explains how persistent problems of English public law are related to fundamental differences between the English and French legal and political traditions — differences in their conception of the state administration, their approach to law, their separation of powers, and their judicial procedures in public law cases. The book shows how a satisfactory distinction between public and private law depends on a particular legal and political context, a context that was evident in late 19th-century France and lacking in 20th-century England. It concludes by identifying the far-reaching theoretical, institutional, and procedural changes required to accommodate English public law.

Aboriginal Societies and the Common Law

P.G. McHugh — 2010-01-01

Author:: P.G. McHugh
ISBN:: 9780198252481
Publisher:: Oxford University Press
Subjects:: Law, Philosophy of Law, Legal History
DOI:: 10.1093/acprof:oso/9780198252481.001.0001
Published in print:: 2004
Published Online:: 2010-01-01

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.

Tom Bingham and the Transformation of the Law

Mads Andenas and Duncan Fairgrieve — 2009-09-01

Author:: MadsAndenasProfessor of Law, University of OsloDuncanFairgrieveFellow in Comparative Law and Director of the Tort Law Centre at the British Institute of International and Comparative Law
ISBN:: 9780199566181
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780199566181.001.0001
Published in print:: 2009
Published Online:: 2009-09-01

Tom Bingham is internationally recognised as one of the most influential judges of the 20th century. Having occupied in succession the most senior judicial offices in the United Kingdom, Master of the Rolls, Lord Chief Justice, and Senior Law Lord, his judicial and academic work have deeply influenced the development of the law in a period of transformation. His argument for a new UK Supreme Court and incorporation of the European Human Rights Convention and his views on the rule of law and judicial independence have left a profound mark on UK constitutional law. He has also been instrumental in championing the academic and judicial use of comparative law. As a judge, Lord Bingham has given effect to the legislative incorporation of the ECHR and the protection of individual rights against anti-terror legislation, strengthened judicial independence, and gained an international influence reaching beyond the common law world. This book collects together more than fifty chapters from colleagues and those influenced by Lord Bingham, from across academia and legal practice. The chapters survey Lord Bingham's pivotal role in the transformations that have taken place in the legal system during his career, and in the protection and development of the rule of law.

The Judicial House of Lords 1876–2009

Louis Blom-Cooper QC, Brice Dickson, and Gavin Drewry — 2009-09-01

Author:: LouisBlom-Cooper QCBencher of the Middle TempleBriceDicksonProfessor of International and Comparative Law, Queen's University BelfastGavinDrewryProfessor of Public Administration, Royal Holloway, University of London
ISBN:: 9780199532711
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780199532711.001.0001
Published in print:: 2009
Published Online:: 2009-09-01

The House of Lords has served as the highest court in the UK for over 130 years. In 2009, a new UK Supreme Court will take over its judicial functions, closing the doors on one of the most influential legal institutions in the world, and a major chapter in the history of the UK legal system. This book gathers over forty leading scholars and practitioners from the UK and beyond to provide a history of the House of Lords as a judicial institution, charting its role, working practices, reputation, and impact on the law and UK legal system. The book examines the origins of the House's judicial work; the different phases in the court's history; the international reputation and influence of the House in the legal profession; the domestic perception of the House outside the law; and the impact of the House on the UK legal tradition and substantive law.

Women, Crime, and Character

Nicola Lacey — 2009-01-01

Author:: Nicola Lacey
ISBN:: 9780199544363
Publisher:: Oxford University Press
Subjects:: Law, Criminal Law and Criminology, Legal History
DOI:: 10.1093/acprof:oso/9780199544363.001.0001
Published in print:: 2008
Published Online:: 2009-01-01

In this book, the disappearance of Moll Flanders, and her supercession in the annals of literary female offenders in the realist tradition by heroines like Tess of the d'Urbervilles, serves as a metaphor for fundamental changes in ideas of selfhood, gender, and social order in 18th and 19th Century England. Drawing on law, literature, philosophy, and social and economic history, the book argues that these broad changes underpinned a radical shift in mechanisms of responsibility-attribution, with decisive implications for the criminalization of women. This work explores the meaning of key social concepts such as agency, identity, selfhood, responsibility, rights, truth, and credibility through a wide range of complementary sources and practices. It illuminates their fundamental dependence on institutions which develop unevenly across the various interlocking spheres of social space. It focuses in particular on the question of how the treatment and understanding of female criminality was changing during the era which saw the construction of the main building blocks of the modern criminal process, and of how these understandings related in turn to broader ideas about sexual difference, social order and individual agency. This book tells the story of the shifting relationship between informal codes of norms such as the ‘cult of sensibility’ and the formal system of criminal justice, and of the impact on women and on understandings of femininity of these complementary systems of discipline.

William Blackstone

Wilfrid Prest — 2009-01-01

Author:: Wilfrid Prest
ISBN:: 9780199550296
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780199550296.001.0001
Published in print:: 2008
Published Online:: 2009-01-01

This is the first comprehensive account of the life and writings of William Blackstone, whose Commentaries on the Laws of England remains the most celebrated and influential text in the Anglo-American common-law tradition. Based on the widest possible range of archival, manuscript, and printed sources, it presents a rounded and engaging picture of the man and his work. Lawyer, judge, politician, poet, teacher, man of business, and student of architecture, Sir William Blackstone was a major figure in mid-18th century public life. Over a varied and brilliant career he made profound contributions to English politics, law, education, and culture through involvements in legal practice, the legislature, and the University of Oxford. Throughout he also remained engaged in his society's literary, scholarly, and spiritual life. Yet despite the breadth and influence of his work, Blackstone the man remains little known and poorly understood, the lack of engagement with his public and private life standing in stark contrast to the scale of his influence, particularly on the development and teaching of the law. Blackstone's great book has inevitably overshadowed its author, while the dispersal of his personal and professional papers further complicates the task of understanding the man behind the book. Further, the lack of a thorough account of Blackstone's life has fuelled controversy about his intellectual character and political outlook. This biography makes full use of a considerable body of new evidence to shed light on an unduly neglected figure in English and American history. It explores Blackstone's family background, schooling, university career, legal practice, literary achievements and academic initiatives, domestic life and political activities, religious views, and Enlightenment principles.

A Jurisprudence of Power

Rande W. Kostal — 2009-01-01

Author:: Rande W. Kostal
ISBN:: 9780199551941
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law, Legal History
DOI:: 10.1093/acprof:oso/9780199551941.001.0001
Published in print:: 2008
Published Online:: 2009-01-01

A Jurisprudence of Power concerns the brutal suppression under martial law of the Jamaica uprising of 1865, and the explosive debate and litigation these events spawned in England. The book explores the centrality of legal ideas and institutions in English politics, and of political ideas that give rise to great questions of English law. It documents how the world's most powerful and articulate political elite struggled with fundamental questions about law, morality, and power. Can a constitutional state rule a sprawling empire without breaking faith with the rule of law? Can it contend with the violent resistance of subjugated peoples without corrupting the integrity of its legal and political ideals? In addressing these questions the book reconstructs the most prolonged and important conflict over martial law and the rule of law in the history of England in the 19th century.

The Fourth Amendment

William J. Cuddihy — 2009-01-01

Author:: William J. Cuddihy
ISBN:: 9780195367195
Publisher:: Oxford University Press
Subjects:: Law, Legal History
DOI:: 10.1093/acprof:oso/9780195367195.001.0001
Published in print:: 2009
Published Online:: 2009-01-01

This book tells the full story of the Fourth Amendment's complex history leading up to its ratification, including its intellectual roots in England. The Fourth Amendment's protection against unreasonable search and seizure provides the bulwark for police regulation and many other government functions in the United States. One of the most controversial rights in the Bill of Rights, this amendment is also among the most frequently adjudicated provisions of constitutional law. Yet its meaning has remained deeply contested, and the story of its origins is largely unknown. This book has particular relevance today given the long list of controversial new surveillance measures undertaken by the government in recent years. It provides historical context to recent events such as the passage of the USA–Patriot Act, the NSA surveillance program, new surveillance techniques, and the emergence of data mining. There is—and will be for the foreseeable future—extensive attention given to the Fourth Amendment as it is applied to new technologies. The preface has been written by privacy expert Daniel Solove.

Bills of Rights and Decolonization

Charles Parkinson — 2009-01-01

Author:: Charles Parkinson
ISBN:: 9780199231935
Publisher:: Oxford University Press
Subjects:: Law, Constitutional and Administrative Law, Legal History
DOI:: 10.1093/acprof:oso/9780199231935.001.0001
Published in print:: 2007
Published Online:: 2009-01-01

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.