William E. Nelson
- Published in print:
- 2008
- Published Online:
- September 2008
- ISBN:
- 9780195327281
- eISBN:
- 9780199870677
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195327281.001.0001
- Subject:
- History, American History: early to 18th Century
The four-volume series of which this book is the first volume shows how the legal systems of Britain's thirteen North American colonies, which were initially established in response to divergent ...
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The four-volume series of which this book is the first volume shows how the legal systems of Britain's thirteen North American colonies, which were initially established in response to divergent political, economic, and religious initiatives, slowly converged until it became possible by the 1770s to imagine that all thirteen participated in a common American legal order, which diverged in its details but differed far more substantially from English common law. This book reveals how Virginians' zeal for profit led to the creation of a harsh legal order that efficiently squeezed payment out of debtors and labor out of servants. In comparison, Puritan law in early Massachusetts strove mainly to preserve the local autonomy and moral values of family-centered, subsistence farming communities. The law in the other New England colonies, although it was distinctive in some respects, gravitated toward the Massachusetts model, while Maryland's law, except during a brief interlude of Puritan rule, gravitated toward that of Virginia.Less
The four-volume series of which this book is the first volume shows how the legal systems of Britain's thirteen North American colonies, which were initially established in response to divergent political, economic, and religious initiatives, slowly converged until it became possible by the 1770s to imagine that all thirteen participated in a common American legal order, which diverged in its details but differed far more substantially from English common law. This book reveals how Virginians' zeal for profit led to the creation of a harsh legal order that efficiently squeezed payment out of debtors and labor out of servants. In comparison, Puritan law in early Massachusetts strove mainly to preserve the local autonomy and moral values of family-centered, subsistence farming communities. The law in the other New England colonies, although it was distinctive in some respects, gravitated toward the Massachusetts model, while Maryland's law, except during a brief interlude of Puritan rule, gravitated toward that of Virginia.
Arad Reisberg
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199204892
- eISBN:
- 9780191709487
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199204892.003.0004
- Subject:
- Law, Company and Commercial Law
This chapter inquires into the particular difficulties minority shareholders face where they seek redress against wrongdoing directors. Section 3.2 discusses these problems and Section 3.3 outlines ...
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This chapter inquires into the particular difficulties minority shareholders face where they seek redress against wrongdoing directors. Section 3.2 discusses these problems and Section 3.3 outlines the common law responses to these problems. Through extensive discussion of case law and emerging so-called principles and rules this section illustrates how procedurally and substantively English law has developed to provide disincentives to prospective shareholder claimants in this context. Subsequently, two policy responses are analysed. First, Section 3.4.1 examines and assesses the competence of three alternative bodies which may assess the merits of a derivative action: a committee of independent directors, an ‘independent organ’ of the company, and the courts. It concludes that courts should discharge the task of deciding this critical question. Section 3.4.2 explains that once a gatekeeper is put in place, the focus should be on establishing an expeditious means for screening and dismissing non-meritorious cases. It evaluates how well (or rather, badly) current legal screens work.Less
This chapter inquires into the particular difficulties minority shareholders face where they seek redress against wrongdoing directors. Section 3.2 discusses these problems and Section 3.3 outlines the common law responses to these problems. Through extensive discussion of case law and emerging so-called principles and rules this section illustrates how procedurally and substantively English law has developed to provide disincentives to prospective shareholder claimants in this context. Subsequently, two policy responses are analysed. First, Section 3.4.1 examines and assesses the competence of three alternative bodies which may assess the merits of a derivative action: a committee of independent directors, an ‘independent organ’ of the company, and the courts. It concludes that courts should discharge the task of deciding this critical question. Section 3.4.2 explains that once a gatekeeper is put in place, the focus should be on establishing an expeditious means for screening and dismissing non-meritorious cases. It evaluates how well (or rather, badly) current legal screens work.
Jacob T. Levy
- Published in print:
- 2000
- Published Online:
- October 2005
- ISBN:
- 9780198297703
- eISBN:
- 9780191602948
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/019829770X.003.0012
- Subject:
- Political Science, Political Theory
Three broad kinds of incorporation of indigenous law in a multicultural society are described: customary law, common law, and self‐government. These modes of incorporation have different internal ...
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Three broad kinds of incorporation of indigenous law in a multicultural society are described: customary law, common law, and self‐government. These modes of incorporation have different internal logics, different moral and political implications, and different resulting legal rights for indigenous people. The chapter discusses these differences with reference to the experience of some societies that have incorporated indigenous law in these various ways. Inconsistencies in the treatment of indigenous law, and its treatment by hybrid approaches are also discussed, as is religious law.Less
Three broad kinds of incorporation of indigenous law in a multicultural society are described: customary law, common law, and self‐government. These modes of incorporation have different internal logics, different moral and political implications, and different resulting legal rights for indigenous people. The chapter discusses these differences with reference to the experience of some societies that have incorporated indigenous law in these various ways. Inconsistencies in the treatment of indigenous law, and its treatment by hybrid approaches are also discussed, as is religious law.
Katja Maria Vogt
- Published in print:
- 2008
- Published Online:
- January 2008
- ISBN:
- 9780195320091
- eISBN:
- 9780199869657
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195320091.001.0001
- Subject:
- Philosophy, Ancient Philosophy
The book is a comprehensive study of early Stoic political philosophy. It considers the conceptions of the cosmic city and the common law as central to the Stoics' theory, and discusses how these ...
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The book is a comprehensive study of early Stoic political philosophy. It considers the conceptions of the cosmic city and the common law as central to the Stoics' theory, and discusses how these conceptions are integral to Stoic thought on reason, wisdom, and life in agreement with nature. Accordingly, the book devotes detailed attention to central areas of Stoic philosophy, such as the theory of affiliation (oikeiôsis), appropriate and perfect action, epistemology, and theology. The book discusses competing interpretations of Stoic cosmopolitanism, arguing that the ideal city of the early Stoics is the cosmos and thus is already in existence. All human beings live in the cosmic city, but only the wise and the gods are its citizens. The book devotes equal attention to the interpretation of the Stoics' conception of law. To live by the law, it is argued, is to live by nature, in a way which relies on understanding what is of value to human beings, rather than on following a set of rules. Against the view that early Stoic thought about these issues is best described as exploring an ideal for individual agents, the book argues that the Stoics are offering a theory which, while deeply connected with the core concerns of Stoic ethics, can be considered a genuine contribution to political philosophy.Less
The book is a comprehensive study of early Stoic political philosophy. It considers the conceptions of the cosmic city and the common law as central to the Stoics' theory, and discusses how these conceptions are integral to Stoic thought on reason, wisdom, and life in agreement with nature. Accordingly, the book devotes detailed attention to central areas of Stoic philosophy, such as the theory of affiliation (oikeiôsis), appropriate and perfect action, epistemology, and theology. The book discusses competing interpretations of Stoic cosmopolitanism, arguing that the ideal city of the early Stoics is the cosmos and thus is already in existence. All human beings live in the cosmic city, but only the wise and the gods are its citizens. The book devotes equal attention to the interpretation of the Stoics' conception of law. To live by the law, it is argued, is to live by nature, in a way which relies on understanding what is of value to human beings, rather than on following a set of rules. Against the view that early Stoic thought about these issues is best described as exploring an ideal for individual agents, the book argues that the Stoics are offering a theory which, while deeply connected with the core concerns of Stoic ethics, can be considered a genuine contribution to political philosophy.
Jacob T. Levy
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198297123
- eISBN:
- 9780191599767
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198297122.003.0007
- Subject:
- Political Science, Political Theory
Indigenous, and also religious, legal codes can be and have been incorporated into the legal systems of states in a number of ways. These include common‐law incorporation, which recognizes culturally ...
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Indigenous, and also religious, legal codes can be and have been incorporated into the legal systems of states in a number of ways. These include common‐law incorporation, which recognizes culturally distinct ways of establishing rights that are known to the general law, such as marriage and property rights; customary incorporation, which directly applies and enforces the customary rights, privileges, and duties associated with the relevant legal tradition; and self‐government, which grants legal status to the group to make, and revise, its laws on a territorial basis. Hybrid forms have often represented hypocrisy on the states’ part, according to indigenous peoples, the burdens of all these and the benefits of none. The inalienability of indigenous land against a generally common‐law background is such a hypocrisy.Less
Indigenous, and also religious, legal codes can be and have been incorporated into the legal systems of states in a number of ways. These include common‐law incorporation, which recognizes culturally distinct ways of establishing rights that are known to the general law, such as marriage and property rights; customary incorporation, which directly applies and enforces the customary rights, privileges, and duties associated with the relevant legal tradition; and self‐government, which grants legal status to the group to make, and revise, its laws on a territorial basis. Hybrid forms have often represented hypocrisy on the states’ part, according to indigenous peoples, the burdens of all these and the benefits of none. The inalienability of indigenous land against a generally common‐law background is such a hypocrisy.
F. A. R. Bennion
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199564101
- eISBN:
- 9780191705465
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199564101.001.0001
- Subject:
- Law, Constitutional and Administrative Law
This book is a distillation of a larger work Bennion on Statutory Interpretation. It consists of an introduction and eighteen chapters each summarized at the end. The common law system presented here ...
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This book is a distillation of a larger work Bennion on Statutory Interpretation. It consists of an introduction and eighteen chapters each summarized at the end. The common law system presented here is called the Global method both because it is worldwide and because it requires the interpreter to take every relevant consideration into account, including (under the doctrine of precedent) previous court decisions. The book starts by explaining what is meant by ‘common law legislation’. It then says that construing common law legislation has often been found difficult as an analytical concept, giving as the main reason deficiencies in legal education. One deficiency, still continuing, is to teach (mistakenly) that the interpretative criteria solely consist of the literal rule, the mischief rule, and the golden rule. The book aims to redress the deficiencies by presenting the issues briefly but correctly. There are a great many interpretative criteria, and where these conflict in a particular case there must be a judicial process of weighing and balancing. The criteria consist of four types: rules laid down by statute or common law, presumptions arising from the nature of legislation, principles of legal policy, and literary canons applying to all types of language. The book has a final chapter on techniques of ‘law handling’ or ‘law management’, which are central to any lawyer's or law student's functioning.Less
This book is a distillation of a larger work Bennion on Statutory Interpretation. It consists of an introduction and eighteen chapters each summarized at the end. The common law system presented here is called the Global method both because it is worldwide and because it requires the interpreter to take every relevant consideration into account, including (under the doctrine of precedent) previous court decisions. The book starts by explaining what is meant by ‘common law legislation’. It then says that construing common law legislation has often been found difficult as an analytical concept, giving as the main reason deficiencies in legal education. One deficiency, still continuing, is to teach (mistakenly) that the interpretative criteria solely consist of the literal rule, the mischief rule, and the golden rule. The book aims to redress the deficiencies by presenting the issues briefly but correctly. There are a great many interpretative criteria, and where these conflict in a particular case there must be a judicial process of weighing and balancing. The criteria consist of four types: rules laid down by statute or common law, presumptions arising from the nature of legislation, principles of legal policy, and literary canons applying to all types of language. The book has a final chapter on techniques of ‘law handling’ or ‘law management’, which are central to any lawyer's or law student's functioning.
Randy E. Barnett
- Published in print:
- 2000
- Published Online:
- November 2003
- ISBN:
- 9780198297291
- eISBN:
- 9780191598777
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198297297.003.0006
- Subject:
- Political Science, Political Theory
Though the abstract background rights that define justice are underdeterminate in that more than one set of specific action‐guiding precepts can often satisfy their theoretical demands, these rights ...
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Though the abstract background rights that define justice are underdeterminate in that more than one set of specific action‐guiding precepts can often satisfy their theoretical demands, these rights can still provide a basis for criticizing specific precepts that are discovered in some other way. Specific action guiding rules of law cannot ordinarily be deduced from abstract rights. Instead, specific conventions to guide conduct can evolve in a common‐law process that has certain characteristics enabling judges (1) to obtain information about the complexities of practice and (2) to formulate rules to decide future cases in a manner that is both consistent with each other and with underlying principles of justice. To ensure a link between the common‐law process and the liberal conception of justice requires both an internal and external link. Apparent conflicts between justice and the rule of law can be resolved in a variety of ways, but when the conflict is clear and demonstrable, justice—which addresses the first‐order problem of knowledge (and also problems of interest)—should take priority over the rule of law.Less
Though the abstract background rights that define justice are underdeterminate in that more than one set of specific action‐guiding precepts can often satisfy their theoretical demands, these rights can still provide a basis for criticizing specific precepts that are discovered in some other way. Specific action guiding rules of law cannot ordinarily be deduced from abstract rights. Instead, specific conventions to guide conduct can evolve in a common‐law process that has certain characteristics enabling judges (1) to obtain information about the complexities of practice and (2) to formulate rules to decide future cases in a manner that is both consistent with each other and with underlying principles of justice. To ensure a link between the common‐law process and the liberal conception of justice requires both an internal and external link. Apparent conflicts between justice and the rule of law can be resolved in a variety of ways, but when the conflict is clear and demonstrable, justice—which addresses the first‐order problem of knowledge (and also problems of interest)—should take priority over the rule of law.
Patrick Polden
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199258819
- eISBN:
- 9780191718151
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199258819.003.0018
- Subject:
- Law, Legal History
This chapter begins with a discussion of practice and procedure in the superior courts in the 19th century. It then discusses the law of evidence in civil causes, organization and business of the ...
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This chapter begins with a discussion of practice and procedure in the superior courts in the 19th century. It then discusses the law of evidence in civil causes, organization and business of the courts of common law, the great sessions of Wales, the Assize system, and the Central Criminal Court.Less
This chapter begins with a discussion of practice and procedure in the superior courts in the 19th century. It then discusses the law of evidence in civil causes, organization and business of the courts of common law, the great sessions of Wales, the Assize system, and the Central Criminal Court.
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/9780195366815.003.0010
- Subject:
- Law, Family Law
This chapter examines how the conflict of laws principles are applied to the issue of whether a common law marriage has been established between parties with connections to states other than the ...
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This chapter examines how the conflict of laws principles are applied to the issue of whether a common law marriage has been established between parties with connections to states other than the common law state, through domicile, residence, or in another manner. Courts and governmental authorities in all of the states within the United States and many foreign countries may have to determine whether such a marriage has been established between a man and a woman who previously had been domiciled in a common law marriage state. In addition, a formless marriage can be established during a short visit by a cohabiting couple to a common law marriage state, even if they do not reside in one. This chapter further examines how the substantive law of common law marriage states is applied.Less
This chapter examines how the conflict of laws principles are applied to the issue of whether a common law marriage has been established between parties with connections to states other than the common law state, through domicile, residence, or in another manner. Courts and governmental authorities in all of the states within the United States and many foreign countries may have to determine whether such a marriage has been established between a man and a woman who previously had been domiciled in a common law marriage state. In addition, a formless marriage can be established during a short visit by a cohabiting couple to a common law marriage state, even if they do not reside in one. This chapter further examines how the substantive law of common law marriage states is applied.
Steven K. Green
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780195399677
- eISBN:
- 9780199777150
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195399677.003.0005
- Subject:
- Religion, History of Christianity, Religion and Society
This begins a three-chapter discussion of legal disestablishment, of the development and decline of the maxim that Christianity formed part of the common law. It traces the origins of the maxim in ...
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This begins a three-chapter discussion of legal disestablishment, of the development and decline of the maxim that Christianity formed part of the common law. It traces the origins of the maxim in higher-law notions, British common law, and Puritan legal codes. It discusses the influence of jurists William Blackstone, Joseph Story, and James Kent and the maxim’s early application in blasphemy and Sunday law cases. The chapter argues that the maxim influenced early legal attitudes toward understandings of disestablishment.Less
This begins a three-chapter discussion of legal disestablishment, of the development and decline of the maxim that Christianity formed part of the common law. It traces the origins of the maxim in higher-law notions, British common law, and Puritan legal codes. It discusses the influence of jurists William Blackstone, Joseph Story, and James Kent and the maxim’s early application in blasphemy and Sunday law cases. The chapter argues that the maxim influenced early legal attitudes toward understandings of disestablishment.
F. A. R. Bennion
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780199564101
- eISBN:
- 9780191705465
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199564101.003.0001
- Subject:
- Law, Constitutional and Administrative Law
This introductory chapter starts by explaining what is meant by ‘common law legislation’ in the title of the book. It then says that construing common law legislation has often been found to be ...
More
This introductory chapter starts by explaining what is meant by ‘common law legislation’ in the title of the book. It then says that construing common law legislation has often been found to be difficult as an analytical concept, giving as the main reason deficiencies in legal education. One deficiency, still continuing, is to teach (mistakenly) that the interpretative criteria solely consist of the literal rule, the mischief rule, and the golden rule. This book aims to redress the deficiencies by presenting the issues briefly but correctly. There are a great many interpretative criteria, and where these conflict in a particular case there must be a judicial process of weighing and balancing. The common law system of statutory interpretation presented here may be called the Global method both because it is worldwide and because it requires the interpreter to take every relevant consideration into account, including (under the doctrine of precedent) previous court decisions.Less
This introductory chapter starts by explaining what is meant by ‘common law legislation’ in the title of the book. It then says that construing common law legislation has often been found to be difficult as an analytical concept, giving as the main reason deficiencies in legal education. One deficiency, still continuing, is to teach (mistakenly) that the interpretative criteria solely consist of the literal rule, the mischief rule, and the golden rule. This book aims to redress the deficiencies by presenting the issues briefly but correctly. There are a great many interpretative criteria, and where these conflict in a particular case there must be a judicial process of weighing and balancing. The common law system of statutory interpretation presented here may be called the Global method both because it is worldwide and because it requires the interpreter to take every relevant consideration into account, including (under the doctrine of precedent) previous court decisions.
Göran Lind
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780195366815
- eISBN:
- 9780199867837
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195366815.001.0001
- Subject:
- Law, Family Law
This book is a comprehensive analysis of common law marriage. Part I provides a cultural and historical history of the subject, from Ancient Roman Law to Medieval Canon Law, and analyzes the ...
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This book is a comprehensive analysis of common law marriage. Part I provides a cultural and historical history of the subject, from Ancient Roman Law to Medieval Canon Law, and analyzes the reception of the doctrine in the United States. The current law concerning common law marriage is extremely complex and uncertain. By analyzing more than 2,000 American cases, Part II of the book is intended to be a legal guide for courts, public authorities and law firms dealing with common law marriage cases. It discusses the legal requirements for the establishment of a common law marriage as to capacity, contract, implied agreement, cohabitation and holding out, burdens of proof, and presumptions. Choice of law rules in all American jurisdictions are analyzed. One of the greatest challenges that family law today faces in the Western World is the decreasing rate of marriage and the increasing number of unmarried cohabiting couples. Part III conducts from historical, comparative, and sociological perspectives a legal policy discussion concerning the future of common law marriage and the modern cohabitation law. It contains a comparison of both the judicial and legislative developments in the United States, Northern and Western Europe, Canada, Australia, and New Zealand. With no predetermined agenda or bias, arguments are presented and discussed to give legislators and policymakers a basis for their considerations. Different legal constructions are discussed and a new model of marriage is presented.Less
This book is a comprehensive analysis of common law marriage. Part I provides a cultural and historical history of the subject, from Ancient Roman Law to Medieval Canon Law, and analyzes the reception of the doctrine in the United States. The current law concerning common law marriage is extremely complex and uncertain. By analyzing more than 2,000 American cases, Part II of the book is intended to be a legal guide for courts, public authorities and law firms dealing with common law marriage cases. It discusses the legal requirements for the establishment of a common law marriage as to capacity, contract, implied agreement, cohabitation and holding out, burdens of proof, and presumptions. Choice of law rules in all American jurisdictions are analyzed. One of the greatest challenges that family law today faces in the Western World is the decreasing rate of marriage and the increasing number of unmarried cohabiting couples. Part III conducts from historical, comparative, and sociological perspectives a legal policy discussion concerning the future of common law marriage and the modern cohabitation law. It contains a comparison of both the judicial and legislative developments in the United States, Northern and Western Europe, Canada, Australia, and New Zealand. With no predetermined agenda or bias, arguments are presented and discussed to give legislators and policymakers a basis for their considerations. Different legal constructions are discussed and a new model of marriage is presented.
Joanna L. Grossman and Lawrence M. Friedman
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691149820
- eISBN:
- 9781400839773
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691149820.003.0004
- Subject:
- Law, Family Law
This chapter describes the adventures—and the decline and fall—of the doctrine of common-law marriage in the twentieth century. A common-law marriage was an informal, but perfectly legal, marriage. ...
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This chapter describes the adventures—and the decline and fall—of the doctrine of common-law marriage in the twentieth century. A common-law marriage was an informal, but perfectly legal, marriage. If a man and woman agreed with each other to be husband and wife, then, from that moment on, they were husband and wife, without a marriage license, a judge or clergyman, witnesses, or anything else. A series of court decisions, in the first half of the nineteenth century, established the doctrine in most of the states. The chapter looks at the social factors which led to the decline of the common-law marriage.Less
This chapter describes the adventures—and the decline and fall—of the doctrine of common-law marriage in the twentieth century. A common-law marriage was an informal, but perfectly legal, marriage. If a man and woman agreed with each other to be husband and wife, then, from that moment on, they were husband and wife, without a marriage license, a judge or clergyman, witnesses, or anything else. A series of court decisions, in the first half of the nineteenth century, established the doctrine in most of the states. The chapter looks at the social factors which led to the decline of the common-law marriage.
Michelle T Grando
- Published in print:
- 2009
- Published Online:
- May 2010
- ISBN:
- 9780199572649
- eISBN:
- 9780191722103
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199572649.003.0002
- Subject:
- Law, Public International Law
This chapter discusses the meaning of basic concepts such as the burden of proof, standard of proof, and presumptions. It explains how those concepts are defined in the common law system, the civil ...
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This chapter discusses the meaning of basic concepts such as the burden of proof, standard of proof, and presumptions. It explains how those concepts are defined in the common law system, the civil law system, and in international law. It argues that because those concepts do not have exactly the same meaning in all legal systems, WTO panels and the Appellate Body should clearly define those concepts in the context of WTO law, taking into consideration the basic structure of the WTO dispute settlement system.Less
This chapter discusses the meaning of basic concepts such as the burden of proof, standard of proof, and presumptions. It explains how those concepts are defined in the common law system, the civil law system, and in international law. It argues that because those concepts do not have exactly the same meaning in all legal systems, WTO panels and the Appellate Body should clearly define those concepts in the context of WTO law, taking into consideration the basic structure of the WTO dispute settlement system.
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.
Jonnette Watson Hamilton and Nigel Bankes
- Published in print:
- 2010
- Published Online:
- May 2010
- ISBN:
- 9780199579853
- eISBN:
- 9780191722745
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199579853.003.0002
- Subject:
- Law, Public International Law, Environmental and Energy Law
This chapter reviews property law theory and its literature that aims to show how developments in general property theory may be relevant for energy and natural resources. It focuses on liberal ...
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This chapter reviews property law theory and its literature that aims to show how developments in general property theory may be relevant for energy and natural resources. It focuses on liberal Western understandings of property, and primarily those within the common law tradition. The chapter is organized as follows. Section I takes a broad look at the literature addressing the question of ‘what is property?’ and the issues raised by that question. It discusses a number of conceptualist and instrumentalist approaches to the matter of definition, looks briefly at the issue of commodification, and examines the literature on the categories of property. It concludes with a consideration of the numerous clauses principle. Section II addresses the problem of justifying property, or at least private property. It outlines the various explanations, dividing them into four types: the labour, desert, first possession (or occupation), and economic theories; personhood theories; liberty-based theories; and pluralist theories. It then looks at explanations for the movement of property from one category to another. The section concludes with a study of the justifications for (private) property as applied to the issue of expropriation.Less
This chapter reviews property law theory and its literature that aims to show how developments in general property theory may be relevant for energy and natural resources. It focuses on liberal Western understandings of property, and primarily those within the common law tradition. The chapter is organized as follows. Section I takes a broad look at the literature addressing the question of ‘what is property?’ and the issues raised by that question. It discusses a number of conceptualist and instrumentalist approaches to the matter of definition, looks briefly at the issue of commodification, and examines the literature on the categories of property. It concludes with a consideration of the numerous clauses principle. Section II addresses the problem of justifying property, or at least private property. It outlines the various explanations, dividing them into four types: the labour, desert, first possession (or occupation), and economic theories; personhood theories; liberty-based theories; and pluralist theories. It then looks at explanations for the movement of property from one category to another. The section concludes with a study of the justifications for (private) property as applied to the issue of expropriation.
Robert Stevens
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199211609
- eISBN:
- 9780191705946
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199211609.001.0001
- Subject:
- Law, Law of Obligations
The law of torts is concerned with the secondary obligations generated by the infringement of primary rights. This apparently simple proposition enables us to understand the law of torts (plural) as ...
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The law of torts is concerned with the secondary obligations generated by the infringement of primary rights. This apparently simple proposition enables us to understand the law of torts (plural) as we find it in the common law. A rival (mis-) conception — exemplified judicially by the decision of the House of Lords in Anns v Merton and academically by Oliver Wendell Holmes' The Common Law, is that the law of tort (singular) is concerned with compensating those who suffer loss because of the fault of another. In order to make good the book's major theoretical claim, the detail of legal doctrine, as found within all common law jurisdictions, is carefully examined. Rather than examine each individual tort, as would be done by a textbook, the concepts central to this and other areas of law are subject to scrutiny. The internal map of the law of torts, and where torts belong within the law more generally, is redrawn. The so-called ‘tort of negligence’ must be abandoned as an organising idea. Further, the common law rights we have, one against another, are sourced in our moral, human, or natural rights, not in the pursuit of any social policy or goal. Finally, by comparing the common law with civilian jurisdictions profound structural differences are disclosed, with consequent differences in the outcome of disputes.Less
The law of torts is concerned with the secondary obligations generated by the infringement of primary rights. This apparently simple proposition enables us to understand the law of torts (plural) as we find it in the common law. A rival (mis-) conception — exemplified judicially by the decision of the House of Lords in Anns v Merton and academically by Oliver Wendell Holmes' The Common Law, is that the law of tort (singular) is concerned with compensating those who suffer loss because of the fault of another. In order to make good the book's major theoretical claim, the detail of legal doctrine, as found within all common law jurisdictions, is carefully examined. Rather than examine each individual tort, as would be done by a textbook, the concepts central to this and other areas of law are subject to scrutiny. The internal map of the law of torts, and where torts belong within the law more generally, is redrawn. The so-called ‘tort of negligence’ must be abandoned as an organising idea. Further, the common law rights we have, one against another, are sourced in our moral, human, or natural rights, not in the pursuit of any social policy or goal. Finally, by comparing the common law with civilian jurisdictions profound structural differences are disclosed, with consequent differences in the outcome of disputes.
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/9780195366815.003.0007
- Subject:
- Law, Family Law
This chapter focuses on several aspects concerning inferred agreements in relation to marriage contracts. Section 7.2 addresses the reasons for accepting inferred agreements, with the establishment ...
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This chapter focuses on several aspects concerning inferred agreements in relation to marriage contracts. Section 7.2 addresses the reasons for accepting inferred agreements, with the establishment of a common law marriage. Section 7.3 considers the development of the law with respect to inferred agreements during the 1800s and 1900s. Section 7.4 addresses the status of inferred agreements today. Thereafter, a presentation concerning the most common evidentiary facts cited as support for inferred agreements is provided in Section 7.5. The courts's reasonings in a number of cases are further discussed in order to explore how the facts cited are used in the finding of the existence of an inferred marriage contract in Section 7.6 as well as the reasonings given in the cases in which no contract was found proven, as discussed in Section 7.7. The chapter ends with a summary and conclusions as to the present status of the law with respect to inferred agreements.Less
This chapter focuses on several aspects concerning inferred agreements in relation to marriage contracts. Section 7.2 addresses the reasons for accepting inferred agreements, with the establishment of a common law marriage. Section 7.3 considers the development of the law with respect to inferred agreements during the 1800s and 1900s. Section 7.4 addresses the status of inferred agreements today. Thereafter, a presentation concerning the most common evidentiary facts cited as support for inferred agreements is provided in Section 7.5. The courts's reasonings in a number of cases are further discussed in order to explore how the facts cited are used in the finding of the existence of an inferred marriage contract in Section 7.6 as well as the reasonings given in the cases in which no contract was found proven, as discussed in Section 7.7. The chapter ends with a summary and conclusions as to the present status of the law with respect to inferred agreements.
J. W. HARRIS
- Published in print:
- 2003
- Published Online:
- January 2013
- ISBN:
- 9780197262795
- eISBN:
- 9780191753954
- Item type:
- chapter
- Publisher:
- British Academy
- DOI:
- 10.5871/bacad/9780197262795.003.0014
- Subject:
- History, Cultural History
The reasoning in common law cases and in the commentaries built upon them appears nowhere more arcane than when it is dealing with property. It is supposed to be concerned with who owns what, or has ...
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The reasoning in common law cases and in the commentaries built upon them appears nowhere more arcane than when it is dealing with property. It is supposed to be concerned with who owns what, or has rights and responsibilities in respect of which, resources; but it is sprinkled with technicalities and in-bred conceptualisations. This chapter is organized as follows. The second section considers some reactions, in the history of political philosophy and social theory, to these peculiarities of the common law. The third section addresses claims that, within the law of modern property systems and especially those derived from the common law, the concept of property has disintegrated, so that it no longer means anything to say that a person ‘owns’ a resource. The fourth section shows how, despite its technical overlays, the common law does deploy conceptions of ownership. That is the key to the ethical underpinning of common law reasoning in relation to property. The fifth section considers instances of purely doctrinal reasoning. It suggests that what looks like dogma for dogma's sake may, after all, have ethical foundations. The chapter concludes that, at its best, the reasoning of the common law, like other juristic doctrine, represents a specialist variety of social convention whereby the mix of sound property-specific justice reasons is made concrete. Surface reasoning is peculiar to lawyers. Underlying justifications are not.Less
The reasoning in common law cases and in the commentaries built upon them appears nowhere more arcane than when it is dealing with property. It is supposed to be concerned with who owns what, or has rights and responsibilities in respect of which, resources; but it is sprinkled with technicalities and in-bred conceptualisations. This chapter is organized as follows. The second section considers some reactions, in the history of political philosophy and social theory, to these peculiarities of the common law. The third section addresses claims that, within the law of modern property systems and especially those derived from the common law, the concept of property has disintegrated, so that it no longer means anything to say that a person ‘owns’ a resource. The fourth section shows how, despite its technical overlays, the common law does deploy conceptions of ownership. That is the key to the ethical underpinning of common law reasoning in relation to property. The fifth section considers instances of purely doctrinal reasoning. It suggests that what looks like dogma for dogma's sake may, after all, have ethical foundations. The chapter concludes that, at its best, the reasoning of the common law, like other juristic doctrine, represents a specialist variety of social convention whereby the mix of sound property-specific justice reasons is made concrete. Surface reasoning is peculiar to lawyers. Underlying justifications are not.
Richard Hyland
- Published in print:
- 2009
- Published Online:
- September 2009
- ISBN:
- 9780195343366
- eISBN:
- 9780199867776
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195343366.001.0001
- Subject:
- Law, Comparative Law
This book studies the law governing the giving and revocation of gifts. Gift-giving is everywhere governed by social and customary norms before it encounters the law. Moreover, the giving of gifts ...
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This book studies the law governing the giving and revocation of gifts. Gift-giving is everywhere governed by social and customary norms before it encounters the law. Moreover, the giving of gifts takes place largely outside of the marketplace. As a result of these two characteristics, the law of gifts provides a lens through which to examine how different legal systems confront social practice. The law of gifts is well-developed both in the civil and the common laws. This book studies how the different civil and common law jurisdictions confront common issues. The legal systems discussed include for the common law those of England, the United States, and India, and, in the civil law, the private law systems of Belgium and France, Germany, Italy, and Spain. This book also provides a critique of a principal method of comparative law, which is a form of functionalism based on what is called the praesumptio similitudinis, namely the axiom that once legal doctrine is stripped away, developed legal systems tend to reach similar practical results. As this study makes clear, legal systems actually differ, not only in their approach and conceptual structure, but just as much in the results. More importantly, this study rejects functionalism in favor of an interpretist method derived from cultural anthropology.Less
This book studies the law governing the giving and revocation of gifts. Gift-giving is everywhere governed by social and customary norms before it encounters the law. Moreover, the giving of gifts takes place largely outside of the marketplace. As a result of these two characteristics, the law of gifts provides a lens through which to examine how different legal systems confront social practice. The law of gifts is well-developed both in the civil and the common laws. This book studies how the different civil and common law jurisdictions confront common issues. The legal systems discussed include for the common law those of England, the United States, and India, and, in the civil law, the private law systems of Belgium and France, Germany, Italy, and Spain. This book also provides a critique of a principal method of comparative law, which is a form of functionalism based on what is called the praesumptio similitudinis, namely the axiom that once legal doctrine is stripped away, developed legal systems tend to reach similar practical results. As this study makes clear, legal systems actually differ, not only in their approach and conceptual structure, but just as much in the results. More importantly, this study rejects functionalism in favor of an interpretist method derived from cultural anthropology.
