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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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

This chapter on restitutionary remedies in the 19th century covers waiver of tort, mistaken payments, failure of consideration, money paid, equity, common law, and the redefinition of ‘quasi-contract’.