Mark Weston Janis
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579341
- eISBN:
- 9780191722653
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579341.003.0002
- Subject:
- Law, Public International Law, Legal History
No group of America's leaders has ever been more mindful of the law of nations than were the Founding Fathers. This chapter tells a little of that story. It begins with American perceptions of the ...
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No group of America's leaders has ever been more mindful of the law of nations than were the Founding Fathers. This chapter tells a little of that story. It begins with American perceptions of the law of nations during the Revolution and Confederation (1776-1789), focusing on Thomas Jefferson and the Declaration of Independence. Second, it turns to the importance of the law of nations in the framing of the US Constitution (1787-1789), focusing on James Madison. Third, the chapter explores how the founders relied on international law in early American diplomacy. Finally, it looks to the incorporation of the law of nations in early American judicial practice, particularly the contribution made by John Marshall.Less
No group of America's leaders has ever been more mindful of the law of nations than were the Founding Fathers. This chapter tells a little of that story. It begins with American perceptions of the law of nations during the Revolution and Confederation (1776-1789), focusing on Thomas Jefferson and the Declaration of Independence. Second, it turns to the importance of the law of nations in the framing of the US Constitution (1787-1789), focusing on James Madison. Third, the chapter explores how the founders relied on international law in early American diplomacy. Finally, it looks to the incorporation of the law of nations in early American judicial practice, particularly the contribution made by John Marshall.
Göran Lind
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195366815
- eISBN:
- 9780199867837
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195366815.003.0004
- Subject:
- Law, Family Law
This chapter examines common law marriage in the United States. Topics discussed include the origins of common law marriage, American reception of common law marriage in the 1800s and early 1900s, ...
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This chapter examines common law marriage in the United States. Topics discussed include the origins of common law marriage, American reception of common law marriage in the 1800s and early 1900s, the peculiarities of American common law marriage, and the reasons behind the recognition of common law marriage in the United States. The initial criticism against American common law marriage is briefly considered.Less
This chapter examines common law marriage in the United States. Topics discussed include the origins of common law marriage, American reception of common law marriage in the 1800s and early 1900s, the peculiarities of American common law marriage, and the reasons behind the recognition of common law marriage in the United States. The initial criticism against American common law marriage is briefly considered.
Robert J Miller, Jacinta Ruru, Larissa Behrendt, and Tracey Lindberg
- Published in print:
- 2010
- Published Online:
- September 2010
- ISBN:
- 9780199579815
- eISBN:
- 9780191594465
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579815.003.0002
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter shows how Discovery was imported and expressly adopted into American colonial and state law in royal charters and colonial and state constitutions, governments, and courts. It explains ...
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This chapter shows how Discovery was imported and expressly adopted into American colonial and state law in royal charters and colonial and state constitutions, governments, and courts. It explains how the United States government adopted Discovery and how it was accepted by American jurisprudence in 1823 in Johnson v M'Intosh. The loss of tribal and individual Indian property rights and sovereignty followed naturally from the use of Discovery against indigenous peoples in what is now the United States.Less
This chapter shows how Discovery was imported and expressly adopted into American colonial and state law in royal charters and colonial and state constitutions, governments, and courts. It explains how the United States government adopted Discovery and how it was accepted by American jurisprudence in 1823 in Johnson v M'Intosh. The loss of tribal and individual Indian property rights and sovereignty followed naturally from the use of Discovery against indigenous peoples in what is now the United States.
Göran Lind
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195366815
- eISBN:
- 9780199867837
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195366815.003.0008
- Subject:
- Law, Family Law
This chapter examines how cohabitation in American law is assigned a different function as a requisite, i.e., as a necessary requirement for the establishment of a common law marriage in addition to ...
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This chapter examines how cohabitation in American law is assigned a different function as a requisite, i.e., as a necessary requirement for the establishment of a common law marriage in addition to the marriage contract. It assesses the underlying motives for the requirement and structure of the principle of cohabitation, as well as identifies its different elements. The boundaries of the principle are significant because they determine the scope of common law marriage, which couples fall outside or inside the regulatory system, determining who receives the rights, as well as the obligations, of marriage. It is common in both the legislation and case law to have a separate requirement that the parties outwardly appear as spouses in addition to the requirement of cohabitation. This requirement focuses on either the parties actions in themselves, in other words, their holding out as spouses, or on the effects thereof, i.e., their reputation as husband and wife.Less
This chapter examines how cohabitation in American law is assigned a different function as a requisite, i.e., as a necessary requirement for the establishment of a common law marriage in addition to the marriage contract. It assesses the underlying motives for the requirement and structure of the principle of cohabitation, as well as identifies its different elements. The boundaries of the principle are significant because they determine the scope of common law marriage, which couples fall outside or inside the regulatory system, determining who receives the rights, as well as the obligations, of marriage. It is common in both the legislation and case law to have a separate requirement that the parties outwardly appear as spouses in addition to the requirement of cohabitation. This requirement focuses on either the parties actions in themselves, in other words, their holding out as spouses, or on the effects thereof, i.e., their reputation as husband and wife.
Michael A. Bailey and Forrest Maltzman
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691151045
- eISBN:
- 9781400840267
- Item type:
- book
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691151045.001.0001
- Subject:
- Law, Legal History
How do Supreme Court justices decide their cases? Do they follow their policy preferences? Or are they constrained by the law and by other political actors? This book combines new theoretical ...
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How do Supreme Court justices decide their cases? Do they follow their policy preferences? Or are they constrained by the law and by other political actors? This book combines new theoretical insights and extensive data analysis to show that law and politics together shape the behavior of justices on the Supreme Court. The book shows how two types of constraints have influenced the decision making of the modern Court. First, the book documents that important legal doctrines, such as respect for precedents, have influenced every justice since 1950. The book finds considerable variation in how these doctrines affect each justice, variation due in part to the differing experiences justices have brought to the bench. Second, it shows that justices are constrained by political factors. Justices are not isolated from what happens in the legislative and executive branches, and instead respond in predictable ways to changes in the preferences of Congress and the president. This book shatters the myth that justices are unconstrained actors who pursue their personal policy preferences at all costs. By showing how law and politics interact in the construction of American law, this book sheds new light on the unique role that the Supreme Court plays in the constitutional order.Less
How do Supreme Court justices decide their cases? Do they follow their policy preferences? Or are they constrained by the law and by other political actors? This book combines new theoretical insights and extensive data analysis to show that law and politics together shape the behavior of justices on the Supreme Court. The book shows how two types of constraints have influenced the decision making of the modern Court. First, the book documents that important legal doctrines, such as respect for precedents, have influenced every justice since 1950. The book finds considerable variation in how these doctrines affect each justice, variation due in part to the differing experiences justices have brought to the bench. Second, it shows that justices are constrained by political factors. Justices are not isolated from what happens in the legislative and executive branches, and instead respond in predictable ways to changes in the preferences of Congress and the president. This book shatters the myth that justices are unconstrained actors who pursue their personal policy preferences at all costs. By showing how law and politics interact in the construction of American law, this book sheds new light on the unique role that the Supreme Court plays in the constitutional order.
Cass R. Sunstein
- Published in print:
- 1995
- Published Online:
- November 2003
- ISBN:
- 9780198289647
- eISBN:
- 9780191596698
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198289642.003.0014
- Subject:
- Economics and Finance, Development, Growth, and Environmental
Sunstein explores the issue of law and its impact on women's quality of life, scrutinizing how law sustains and supports discrimination against women and how it might embody a commitment to sex ...
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Sunstein explores the issue of law and its impact on women's quality of life, scrutinizing how law sustains and supports discrimination against women and how it might embody a commitment to sex equality. Sunstein proposes what he coins an ‘anticaste principle’ which forbids law from turning a morally irrelevant characteristic such as sex into a systematic source of social disadvantage. Focusing on the situation in which women's sexual and reproductive capacities are turned into objects for the use and control of others, Sunstein critiques American sex discrimination law, makes proposals for national and international legal change, and comments on the limitations of market mechanisms in ending discrimination.Less
Sunstein explores the issue of law and its impact on women's quality of life, scrutinizing how law sustains and supports discrimination against women and how it might embody a commitment to sex equality. Sunstein proposes what he coins an ‘anticaste principle’ which forbids law from turning a morally irrelevant characteristic such as sex into a systematic source of social disadvantage. Focusing on the situation in which women's sexual and reproductive capacities are turned into objects for the use and control of others, Sunstein critiques American sex discrimination law, makes proposals for national and international legal change, and comments on the limitations of market mechanisms in ending discrimination.
William J. Cuddihy
- Published in print:
- 2009
- Published Online:
- January 2009
- ISBN:
- 9780195367195
- eISBN:
- 9780199867448
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195367195.003.0023
- Subject:
- Law, Legal History
This chapter shows that between 1776 and 1787, the American law of search and seizure underwent a transformation that separated it from British law. The most obvious mark of that transformation was ...
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This chapter shows that between 1776 and 1787, the American law of search and seizure underwent a transformation that separated it from British law. The most obvious mark of that transformation was the written constitutional acknowledgement of a right respecting search and seizure by most of the new states.Less
This chapter shows that between 1776 and 1787, the American law of search and seizure underwent a transformation that separated it from British law. The most obvious mark of that transformation was the written constitutional acknowledgement of a right respecting search and seizure by most of the new states.
Richard A. Posner
- Published in print:
- 1997
- Published Online:
- March 2012
- ISBN:
- 9780198264712
- eISBN:
- 9780191682773
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198264712.001.0001
- Subject:
- Law, Comparative Law
This book explores the relationship between the legal systems of the UK and USA. The chapters in this volume range widely over themes. The first chapter compares the work of the two most prominent ...
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This book explores the relationship between the legal systems of the UK and USA. The chapters in this volume range widely over themes. The first chapter compares the work of the two most prominent writers on jurisprudence in the second half of this century, one English (H. L. A. Hart) and one American (Ronald Dworkin). The chapter has a controversial conclusion that trying to define ‘law’ is futile, distracting, and illustrative of the impoverishment of traditional legal theory. The second chapter examines a number of English cases drawn primarily from the two fields in which English and American law overlap most completely — torts and contracts. Here the chapter argues that while in general English judges use their common sense effectively to approximate the results that an economic analyst would recommend they would do even better if they were more receptive to the economic approach to the common law — if they were, in other words, a little more like American judges. The next chapter examines the differences between the English and American legal systems at the administrative or operational level as distinct from the jurisprudential and doctrinal levels. The conclusions drawn from this analysis challenge traditional orthodoxy. The concluding advice to law reformers in both jurisdictions is that piecemeal reform of either system is to be avoided.Less
This book explores the relationship between the legal systems of the UK and USA. The chapters in this volume range widely over themes. The first chapter compares the work of the two most prominent writers on jurisprudence in the second half of this century, one English (H. L. A. Hart) and one American (Ronald Dworkin). The chapter has a controversial conclusion that trying to define ‘law’ is futile, distracting, and illustrative of the impoverishment of traditional legal theory. The second chapter examines a number of English cases drawn primarily from the two fields in which English and American law overlap most completely — torts and contracts. Here the chapter argues that while in general English judges use their common sense effectively to approximate the results that an economic analyst would recommend they would do even better if they were more receptive to the economic approach to the common law — if they were, in other words, a little more like American judges. The next chapter examines the differences between the English and American legal systems at the administrative or operational level as distinct from the jurisprudential and doctrinal levels. The conclusions drawn from this analysis challenge traditional orthodoxy. The concluding advice to law reformers in both jurisdictions is that piecemeal reform of either system is to be avoided.
Pedro Nikken
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199578184
- eISBN:
- 9780191722561
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578184.003.0012
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter recalls that the inter-American system of human rights protects property as an individual right. However, the system is not the forum to protect business activity against arbitrary acts ...
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This chapter recalls that the inter-American system of human rights protects property as an individual right. However, the system is not the forum to protect business activity against arbitrary acts of the State. The practice of the Commission and the Court resists mixing wholly economic interests with human rights protection, even if property is involved in the conflict. The inter-American case law contains some solutions for conflicts of law. In cases of conflict between indigenous property and private property, the Court's jurisprudence suggests that human rights prevail over economic rights. Indigenous property is fully protected because it has a function that goes beyond pure economics. In contrast, the protection of other forms of private property is limited to compensation for expropriation. In principle, human rights must always prevail over rights related to international business. The payment of adequate compensation is the solution to meet investments commitments incompatible with human rights obligations.Less
This chapter recalls that the inter-American system of human rights protects property as an individual right. However, the system is not the forum to protect business activity against arbitrary acts of the State. The practice of the Commission and the Court resists mixing wholly economic interests with human rights protection, even if property is involved in the conflict. The inter-American case law contains some solutions for conflicts of law. In cases of conflict between indigenous property and private property, the Court's jurisprudence suggests that human rights prevail over economic rights. Indigenous property is fully protected because it has a function that goes beyond pure economics. In contrast, the protection of other forms of private property is limited to compensation for expropriation. In principle, human rights must always prevail over rights related to international business. The payment of adequate compensation is the solution to meet investments commitments incompatible with human rights obligations.
Anna Wierzbicka
- Published in print:
- 2006
- Published Online:
- September 2007
- ISBN:
- 9780195174748
- eISBN:
- 9780199788514
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195174748.003.0004
- Subject:
- Linguistics, English Language
This chapter investigates, in a historical and cultural perspective, the meaning of the word reasonable, and in particular, of the phrases reasonable man and reasonable doubt, which play an important ...
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This chapter investigates, in a historical and cultural perspective, the meaning of the word reasonable, and in particular, of the phrases reasonable man and reasonable doubt, which play an important role in Anglo-American law. Drawing on studies of the British Enlightenment such as Porter (2000), it traces the modern English concept of “reasonableness” back to the intellectual revolution brought about by the writings of John Locke, who (as Porter says) “replaced rationalism with reasonableness, in a manner which became programmatic for the Enlightenment in Britain”. The chapter also argues that the meaning of the word reasonable has changed over the last two centuries and that as a result, the meaning of phrases like reasonable man and beyond reasonable doubt has also changed. It further argues that since these phrases were continually in use for over two centuries and became entrenched in Anglo-American law as well as in ordinary language, and since the older meaning of reasonable is no longer known to most speakers, the change has, generally speaking, gone unnoticed. The chapter also shows how the meaning of the English word reasonable differs from that of the French word raisonable, and how semantic differences of this kind reflect differences in cultural ideals, traditions, and attitudes.Less
This chapter investigates, in a historical and cultural perspective, the meaning of the word reasonable, and in particular, of the phrases reasonable man and reasonable doubt, which play an important role in Anglo-American law. Drawing on studies of the British Enlightenment such as Porter (2000), it traces the modern English concept of “reasonableness” back to the intellectual revolution brought about by the writings of John Locke, who (as Porter says) “replaced rationalism with reasonableness, in a manner which became programmatic for the Enlightenment in Britain”. The chapter also argues that the meaning of the word reasonable has changed over the last two centuries and that as a result, the meaning of phrases like reasonable man and beyond reasonable doubt has also changed. It further argues that since these phrases were continually in use for over two centuries and became entrenched in Anglo-American law as well as in ordinary language, and since the older meaning of reasonable is no longer known to most speakers, the change has, generally speaking, gone unnoticed. The chapter also shows how the meaning of the English word reasonable differs from that of the French word raisonable, and how semantic differences of this kind reflect differences in cultural ideals, traditions, and attitudes.
Jeff Manza and Christopher Uggen
- Published in print:
- 2006
- Published Online:
- May 2012
- ISBN:
- 9780195149326
- eISBN:
- 9780199943975
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195149326.003.0010
- Subject:
- Sociology, Law, Crime and Deviance
This introductory chapter sets out the purpose of the book, which is to analyze and interpret felon disenfranchisement laws in the United States. It examines whether and how large-scale ...
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This introductory chapter sets out the purpose of the book, which is to analyze and interpret felon disenfranchisement laws in the United States. It examines whether and how large-scale disenfranchisement impacts democratic processes; how racial factors might help to explain the origins and impacts of these laws; and the importance of the right to vote in weaving former offenders back into the social fabric. An overview of the subsequent chapters is also presented.Less
This introductory chapter sets out the purpose of the book, which is to analyze and interpret felon disenfranchisement laws in the United States. It examines whether and how large-scale disenfranchisement impacts democratic processes; how racial factors might help to explain the origins and impacts of these laws; and the importance of the right to vote in weaving former offenders back into the social fabric. An overview of the subsequent chapters is also presented.
Göran Lind
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195366815
- eISBN:
- 9780199867837
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195366815.003.0001
- Subject:
- Law, Family Law
This chapter begins with a discussion of common law marriage in American law, including its definition, jurisdictions that recognize common law marriage, and the need for more in-depth legal ...
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This chapter begins with a discussion of common law marriage in American law, including its definition, jurisdictions that recognize common law marriage, and the need for more in-depth legal discourse. An overview of the subsequent chapters is presented.Less
This chapter begins with a discussion of common law marriage in American law, including its definition, jurisdictions that recognize common law marriage, and the need for more in-depth legal discourse. An overview of the subsequent chapters is presented.
Paul R. Dubinsky
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199694907
- eISBN:
- 9780191731914
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199694907.003.0027
- Subject:
- Law, Public International Law
The status of international law in the US legal system, at this point in time, is a moving picture. So much of importance is so fluid. The law is unsettled because so many of the legal questions ...
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The status of international law in the US legal system, at this point in time, is a moving picture. So much of importance is so fluid. The law is unsettled because so many of the legal questions currently being revisited are of fundamental rather than marginal importance. It is unsettled because not long ago these issues seemed resolved, at least in substantial measure. It is unsettled because the impetus for carrying out this reevaluation comes from many corners — Congress, the executive branch, the judiciary, the academy, state officials, and elsewhere. The current state of flux with regard to customary international law (CIL) has far-reaching implications. In the past, even when the United States refrained from entering into a treaty, some provisions of the treaty might be applied by US courts if those provisions were deemed to codify preexisting CIL. By this reasoning, the door was open for US courts to consult the opinions of foreign courts, not as a means of making the treaty binding on the United States but rather as evidence of CIL. If in the future the US legal system is considerably less monist toward CIL, then there likely will be less engagement between US judges and foreign legal sources.Less
The status of international law in the US legal system, at this point in time, is a moving picture. So much of importance is so fluid. The law is unsettled because so many of the legal questions currently being revisited are of fundamental rather than marginal importance. It is unsettled because not long ago these issues seemed resolved, at least in substantial measure. It is unsettled because the impetus for carrying out this reevaluation comes from many corners — Congress, the executive branch, the judiciary, the academy, state officials, and elsewhere. The current state of flux with regard to customary international law (CIL) has far-reaching implications. In the past, even when the United States refrained from entering into a treaty, some provisions of the treaty might be applied by US courts if those provisions were deemed to codify preexisting CIL. By this reasoning, the door was open for US courts to consult the opinions of foreign courts, not as a means of making the treaty binding on the United States but rather as evidence of CIL. If in the future the US legal system is considerably less monist toward CIL, then there likely will be less engagement between US judges and foreign legal sources.
Markus D Dubber
- Published in print:
- 2011
- Published Online:
- May 2011
- ISBN:
- 9780199559152
- eISBN:
- 9780191725265
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199559152.003.0005
- Subject:
- Law, Philosophy of Law, Criminal Law and Criminology
This chapter focuses on how we should conceive of the inquiry into the foundations of criminal law, whether legal, philosophical, historical, genealogical, or political. It argues that we cannot hope ...
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This chapter focuses on how we should conceive of the inquiry into the foundations of criminal law, whether legal, philosophical, historical, genealogical, or political. It argues that we cannot hope to develop a foundational account of the criminal law without an account of what, if anything, legitimizes the state power that underlies the criminal law — an inquiry that has mostly escaped the attention of American thinkers both at the time the nation was founded and in the years since. The chapter is organized as follows. Section 1 considers various ways of conceiving of an inquiry into the foundations of criminal law. Section 2 explores the distinction between modes of foundational inquiry by considering the significance of the Rechtsgut principle in German criminal law science, on one hand, and in the jurisprudence of the German Constitutional Court, on the other. Section 3 presents preliminary remarks on an inquiry into the foundations of American criminal law.Less
This chapter focuses on how we should conceive of the inquiry into the foundations of criminal law, whether legal, philosophical, historical, genealogical, or political. It argues that we cannot hope to develop a foundational account of the criminal law without an account of what, if anything, legitimizes the state power that underlies the criminal law — an inquiry that has mostly escaped the attention of American thinkers both at the time the nation was founded and in the years since. The chapter is organized as follows. Section 1 considers various ways of conceiving of an inquiry into the foundations of criminal law. Section 2 explores the distinction between modes of foundational inquiry by considering the significance of the Rechtsgut principle in German criminal law science, on one hand, and in the jurisprudence of the German Constitutional Court, on the other. Section 3 presents preliminary remarks on an inquiry into the foundations of American criminal law.
John B. Nann and Morris L. Cohen
- Published in print:
- 2018
- Published Online:
- May 2019
- ISBN:
- 9780300118537
- eISBN:
- 9780300235685
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300118537.003.0010
- Subject:
- Law, Legal History
This chapter discusses sources of information about international law and civil law in the United States. In beginning to look at U.S. practice in international law, a researcher needs to consider ...
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This chapter discusses sources of information about international law and civil law in the United States. In beginning to look at U.S. practice in international law, a researcher needs to consider the sources of the law. The most important sources that may impose requirements or restrictions are treaties, which are agreements entered into between states. When approaching treaty research, researchers must consider three major steps. First, they must identify and locate the treaty; second, they must determine whether the treaty is “in force” and against whom; and third, they must consider how the terms of the treaty will be interpreted. In addition to treaties, the main sources of international law included in the Statute of the International Court of Justice are customary law, general principles of law, judicial decisions, and the writings of scholars or other publicists. The chapter then considers the place civil law had in the historical development of American law.Less
This chapter discusses sources of information about international law and civil law in the United States. In beginning to look at U.S. practice in international law, a researcher needs to consider the sources of the law. The most important sources that may impose requirements or restrictions are treaties, which are agreements entered into between states. When approaching treaty research, researchers must consider three major steps. First, they must identify and locate the treaty; second, they must determine whether the treaty is “in force” and against whom; and third, they must consider how the terms of the treaty will be interpreted. In addition to treaties, the main sources of international law included in the Statute of the International Court of Justice are customary law, general principles of law, judicial decisions, and the writings of scholars or other publicists. The chapter then considers the place civil law had in the historical development of American law.
Justin A. Joyce
- Published in print:
- 2018
- Published Online:
- May 2019
- ISBN:
- 9781526126160
- eISBN:
- 9781526138743
- Item type:
- chapter
- Publisher:
- Manchester University Press
- DOI:
- 10.7228/manchester/9781526126160.003.0001
- Subject:
- Film, Television and Radio, Film
This introductory chapter lays down the theoretical framework for the forgoing analyses, taking many cues from legal studies, U.S. Supreme Court cases and Foucauldian theory. In the world of the ...
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This introductory chapter lays down the theoretical framework for the forgoing analyses, taking many cues from legal studies, U.S. Supreme Court cases and Foucauldian theory. In the world of the Western, the procedural focus of American law gets in the way of justice. The genre embraces justice by gun violence rather than by trial, and has therefore often been read as ‘anti-law’. From the early dime novel fascination with such outlaws and renegades as Billy the Kid and Jesse James, through depictions of lynching in Owen Wister’s 1902 novel, The Virginian, and the film The Ox-Bow Incident (1943), to the guns-blazing heroics of films such as Rio Bravo (1959), High Noon (1952), and Shane (1953), through the darker critiques of The Gunfighter (1950), The Wild Bunch (1969), and Unforgiven (1992), to the postmodern pastiche of Django Unchained (2012), the Western has nourished a vision of social organisation and a means for delivering justice that operates outside the official parameters of American law, relying on a gunslinging hero to uphold order. This chapter argues, in fact, that this opposition is progressively undone in the genre’s formulaic shootouts. The cherished antipathy between ‘the law’ and the Western’s ‘law of the gun’ is, in short, unfounded.Less
This introductory chapter lays down the theoretical framework for the forgoing analyses, taking many cues from legal studies, U.S. Supreme Court cases and Foucauldian theory. In the world of the Western, the procedural focus of American law gets in the way of justice. The genre embraces justice by gun violence rather than by trial, and has therefore often been read as ‘anti-law’. From the early dime novel fascination with such outlaws and renegades as Billy the Kid and Jesse James, through depictions of lynching in Owen Wister’s 1902 novel, The Virginian, and the film The Ox-Bow Incident (1943), to the guns-blazing heroics of films such as Rio Bravo (1959), High Noon (1952), and Shane (1953), through the darker critiques of The Gunfighter (1950), The Wild Bunch (1969), and Unforgiven (1992), to the postmodern pastiche of Django Unchained (2012), the Western has nourished a vision of social organisation and a means for delivering justice that operates outside the official parameters of American law, relying on a gunslinging hero to uphold order. This chapter argues, in fact, that this opposition is progressively undone in the genre’s formulaic shootouts. The cherished antipathy between ‘the law’ and the Western’s ‘law of the gun’ is, in short, unfounded.
John B. Nann and Morris L. Cohen
- Published in print:
- 2018
- Published Online:
- May 2019
- ISBN:
- 9780300118537
- eISBN:
- 9780300235685
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300118537.003.0004
- Subject:
- Law, Legal History
This chapter explores the sources and techniques useful for finding information about the legal culture and law of individual colonies. While the rights and laws of England were the primary source of ...
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This chapter explores the sources and techniques useful for finding information about the legal culture and law of individual colonies. While the rights and laws of England were the primary source of the laws of the colonies, local laws also governed. Indeed, each of the thirteen North American colonies had different fundamental laws, charters, and local legislation and courts. Publication of American law books came slowly from the earliest American printing presses. Not surprisingly, these first books were not carefully written legal treatises. They were instead publications of the colonial governments—often statutory—and “how-to” manuals and formbooks primarily designed for justices of the peace, law officers, and town officials. Other sources of information on colonial law include colonial charters and legislation, royal proclamations, colonial court decisions, and colonial court records.Less
This chapter explores the sources and techniques useful for finding information about the legal culture and law of individual colonies. While the rights and laws of England were the primary source of the laws of the colonies, local laws also governed. Indeed, each of the thirteen North American colonies had different fundamental laws, charters, and local legislation and courts. Publication of American law books came slowly from the earliest American printing presses. Not surprisingly, these first books were not carefully written legal treatises. They were instead publications of the colonial governments—often statutory—and “how-to” manuals and formbooks primarily designed for justices of the peace, law officers, and town officials. Other sources of information on colonial law include colonial charters and legislation, royal proclamations, colonial court decisions, and colonial court records.
John H. Langbein (ed.)
- Published in print:
- 2004
- Published Online:
- October 2013
- ISBN:
- 9780300095647
- eISBN:
- 9780300128765
- Item type:
- chapter
- Publisher:
- Yale University Press
- DOI:
- 10.12987/yale/9780300095647.003.0003
- Subject:
- Law, Legal History
This chapter traces the origins of Yale Law School, which goes back to the earliest days of the nineteenth century, when there was as yet no university legal education. The discussions include the ...
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This chapter traces the origins of Yale Law School, which goes back to the earliest days of the nineteenth century, when there was as yet no university legal education. The discussions include the reasons behind Yale's long hesitance about sustaining a law school; how young lawyers were trained in a world without law schools; eighteenth-century English jurist William Blackstone's objection to the underlying premise of apprenticeship training; and the shift from the apprenticeship system to university legal education in the United States.Less
This chapter traces the origins of Yale Law School, which goes back to the earliest days of the nineteenth century, when there was as yet no university legal education. The discussions include the reasons behind Yale's long hesitance about sustaining a law school; how young lawyers were trained in a world without law schools; eighteenth-century English jurist William Blackstone's objection to the underlying premise of apprenticeship training; and the shift from the apprenticeship system to university legal education in the United States.
LAWRENCE ROSEN
- Published in print:
- 2000
- Published Online:
- January 2010
- ISBN:
- 9780198298854
- eISBN:
- 9780191707452
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780198298854.003.0012
- Subject:
- Law, Comparative Law
American courts are increasingly addressing Muslims who appear before them. This chapter shows how these courts understand Islam, the customs of various Muslims, and allow for a range of variation ...
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American courts are increasingly addressing Muslims who appear before them. This chapter shows how these courts understand Islam, the customs of various Muslims, and allow for a range of variation through a series of reported and unreported decisions.Less
American courts are increasingly addressing Muslims who appear before them. This chapter shows how these courts understand Islam, the customs of various Muslims, and allow for a range of variation through a series of reported and unreported decisions.
Justin A. Joyce
- Published in print:
- 2018
- Published Online:
- May 2019
- ISBN:
- 9781526126160
- eISBN:
- 9781526138743
- Item type:
- chapter
- Publisher:
- Manchester University Press
- DOI:
- 10.7228/manchester/9781526126160.003.0006
- Subject:
- Film, Television and Radio, Film
This chapter explores the language of normativity and its interaction with the Western and the discourse of law. Through close readings of cinematic texts like Shane (1952), The Man Who Shot Liberty ...
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This chapter explores the language of normativity and its interaction with the Western and the discourse of law. Through close readings of cinematic texts like Shane (1952), The Man Who Shot Liberty Valance (1962), and The Shootist (1976) the Western genre is read here to represent what Barbara Cruickshank has called a "technology of citizenship." This chapter argues that the Western gunslinger's masculinity works to discipline, to tame, the potential for radically disruptive personal violence inherent in the liberties of American self-defense doctrine.Less
This chapter explores the language of normativity and its interaction with the Western and the discourse of law. Through close readings of cinematic texts like Shane (1952), The Man Who Shot Liberty Valance (1962), and The Shootist (1976) the Western genre is read here to represent what Barbara Cruickshank has called a "technology of citizenship." This chapter argues that the Western gunslinger's masculinity works to discipline, to tame, the potential for radically disruptive personal violence inherent in the liberties of American self-defense doctrine.
