Anglo-American private law has been a far more complex phenomenon than has been usually recognized. Attempts to reduce it to a single explanatory principle, or to a precisely classified or categorized map, scheme, or diagram, are liable to distort the past by omitting or marginalizing material inconsistent with proposed principles or schemes. This study will be of importance to all who are interested in property, tort, contract, unjust enrichment, legal reasoning, legal method, the history of the common law, and the relation between legal theory and legal history.

Professor James Gordley opens this volume with a concise history of the legal status of promises. In the central part of the book legal experts examine how twelve modern European legal systems deal with fifteen concrete situations in which a promise may not be enforceable--situations that include gifts, loans, bailments, houses, rewards, and brokerage contracts. Despite differences in legal doctrine, the volume reveals similarities in the results. This is the second completed project of The Common Core of European Private Law launched at the University of Trento.

This work traces the history of the English Law of obligations from the twelfth century to the present day. It aims to cut through technicalities and to be comprehensible to readers other than specialist legal historians. It should be of interest to all those wanting to understand how the English Common law has revolved.

Voluntary Euthanasia investigates the complex and controversial issue of active voluntary euthanasia, presenting the legal position in a clear, comprehensive fashion. It critically examines the criminal law prohibition of medically administered active voluntary euthanasia in common law jurisdictions and looks at the situation in practice. The evidence of patient demands for active euthanasia and the willingness of some doctors to respond to patients requests is explored, and an argument for reform of the law is made with reference to the position in the Netherlands where active voluntary euthanasia is now openly practised.

"This important student text deals with all aspects of common law obligations, including the principles of the law of obligations, remedies, negation of liability and specific obligations. The books draws out the common themes that exist between traditional tort and contract courses whilst elements pertaining to the law of restitution are also included.This new edition takes account of statutory developments and new relevant case law since the previous edition and keeps the reader up to date with major changes in the areas of economic loss in negligence and undue influence/economic duress."

This text is a critical study of the public/private law divide in the common law tradition. Professor Oliver's starting point is that special substantive duties of legality, fairness and rationality are imposed by the common law on bodies discharging public functions, but not always on bodies discharging what are considered 'private' functions. She questions the validity of the traditional dichotomy, and proposes new criteria for imposing such duties in accordance with underlying values, including the control of power and respect for the individual's autonomy and dignity. Written by a leading law academic, this is an important and original contribution to public law literature, providing an informed and considered overview for legal academics and students.

This collection of essays brings together the work of many of the world's leading Contract Law scholars. It focuses upon a common central theme---the question of good faith and fair dealing in the Law of Contract. The book is divided into several parts: the first part is an Introduction; Part II examines the requirement of good faith and its role in the formation of contracts; Part III is concerned with contractual obligations; Part IV examines Breach of Contract and Remedial Issues. The work will be of widespread interest to scholars of Private Law in both Common and Civil Law jurisdictions.

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

This work contains most of the cases required for a study of the law of succession and is a very good aid for students who do not have access to the law reports. The title contains a summary of the facts of each case, an extract from the case and a note in which the principles expounded in the case are explained. Decisions up to June 2002 have been considered for inclusion. Hierdie werk bevat die meeste sake wat vir 'n studie van die erfreg nodig is en is 'n baie goeie hulpmiddel vir studente wat nie toegang tot die hofverslae het nie. Die titel bevat 'n opsomming van die feite van elke saak, 'n uittreksel uit die uitspraak asook 'n aantekening waarin die beginsels wat in die saak ter sprake gekom het, ontleed word.

The Navajo Nation court system is the largest and most established tribal legal system in the world. Since the landmark 1959 U.S. Supreme Court decision in "Williams v. Lee" that affirmed tribal court authority over reservation-based claims, the Navajo Nation has been at the vanguard of a far-reaching, transformative jurisprudential movement among Indian tribes in North America and indigenous peoples around the world to retrieve and use traditional values to address contemporary legal issues.

A justice on the Navajo Nation Supreme Court for sixteen years, Justice Raymond D. Austin has been deeply involved in the movement to develop tribal courts and tribal law as effective means of modern self-government. He has written foundational opinions that have established Navajo common law and, throughout his legal career, has recognized the benefit of tribal customs and traditions as tools of restorative justice.

In "Navajo Courts and Navajo Common Law," Justice Austin considers the history and implications of how the Navajo Nation courts apply foundational Navajo doctrines to modern legal issues. He explains key Navajo foundational concepts like Hozho (harmony), K'e (peacefulness and solidarity), and K'ei (kinship) both within the Navajo cultural context and, using the case method of legal analysis, as they are adapted and applied by Navajo judges in virtually every important area of legal life in the tribe.

In addition to detailed case studies, Justice Austin provides a broad view of tribal law, documenting the development of tribal courts as important institutions of indigenous self-governance and outlining how other indigenous peoples, both in North America and elsewhere around the world, can draw on traditional precepts to achieve self-determination and self-government, solve community problems, and control their own futures.

This work explores the relationship between Bentham's utilitarian practical philosophy and his positivist jurisprudence. These theories appear to be in tension because his utilitarian commitment to the sovereignty of utility as a practical decision principle seems inconsistent with his positivist insistence on the sovereignty of the will of the lawmaker. Two themes emerge from the attempt in this work to reconcile these two core elements of Bentham's practical thought. First, Bentham's conception of law does not fit the conventional model of legal positivism. Bentham was not just a utilitarian and a positivist; he was a positivist by virtue of his commitment to a utilitarian understanding of the fundamental task of law. Moreover, his emphasis on the necessary publicity and the systemic character of law, led him to insist on an essential role for utilitarian reasons in the regular public functioning of law. Second, Bentham's radical critique of common law theory and practice convinced him of the necessity to reconcile the need for certainty of law with an equally great need for its flexibility. He eventually developed a constitutional framework for adjudication in the shadow of codified law that accorded to judges discretion to decide particular cases according to their best judgment of the balance of utilities, guaranteeing the accountability and appropriate motivation of judicial decision-making through institutional incentives. The original text of this work, first published in 1986, remains largely unchanged, but an afterword reconsiders and revises some themes in response to criticism.

'Great cases' are those judicial decisions around which the common law pivots. In a sequel to the instant classic Is Eating People Wrong?, this book presents eight new great cases from the United Kingdom, the United States and Australia. Written in a highly accessible yet rigorous style, it explores the social circumstances, institutions (lawyers, judges and courts) and ordinary people whose stories shaped the law. Across the courts' diverse and uncoordinated attempts to adapt to changing conditions and shifting demands, it shows the law as the living, breathing and down-the-street experience it really is. Including seminal cases in end of life, abortion and equal rights, this is an ideal introduction for students to legal history and jurisprudence.

Oxford's variorum edition of William Blackstone's seminal treatise on the common law of England and Wales offers the definitive account of the Commentaries' development in a modern format. For the first time it is possible to trace the evolution of English law and Blackstone's thought through the eight editions of Blackstone's lifetime, and the authorial corrections of the posthumous ninth edition. Introductions by the general editor and the volume editors set the Commentaries in their historical context, examining Blackstone's distinctive view of the common law, and editorial notes throughout the four volumes assist the modern reader in understanding this key text in the Anglo-American common law tradition. In the final volume of the Commentaries Blackstone presents a comprehensive and critical overview of English criminal law and procedure, prefaced by a discussion of the philosophical and basis of the criminal justice system. His final chapter 'On the Rise, Progress, and Gradual Improvements, of the Laws of England' provides a fitting historical conclusion to the work as a whole.

The Plot to Change America exposes the myths that help identity politics perpetuate itself. This book reveals what has really happened, explains why it is urgent to change course, and offers a strategy to do so. Though we should not fool ourselves into thinking that it will be easy to eliminate identity politics, we should not overthink it, either. Identity politics relies on the creation of groups and then on giving people incentives to adhere to them. If we eliminate group making and the enticements, we can get rid of identity politics. The first myth that this book exposes is that identity politics is a grassroots movement, when from the beginning it has been, and continues to be, an elite project. For too long, we have lived with the fairy tale that America has organically grown into a nation gripped by victimhood and identitarian division; that it is all the result of legitimate demands by minorities for recognition or restitutions for past wrongs. The second myth is that identity politics is a response to the demographic change this country has undergone since immigration laws were radically changed in 1965. Another myth we are told is that to fight these changes is as depraved as it is futile, since by 2040, America will be a minority-majority country, anyway. This book helps to explain that none of these things are necessarily true.

Public Finance and Parliamentary Constitutionalism analyses constitutionalism and public finance (tax, expenditure, audit, sovereign borrowing and monetary finance) in Anglophone parliamentary systems of government. The book surveys the history of public finance law in the UK, its export throughout the British Empire, and its entrenchment in Commonwealth constitutions. It explains how modern constitutionalism was shaped by the financial impact of warfare, welfare-state programs and the growth of central banking. It then provides a case study analysis of the impact of economic conditions on governments' financial behaviour, focusing on the UK's and Australia's responses to the financial crisis, and the judiciary's position vis-a-vis the state's financial powers. Throughout, it questions orthodox accounts of financial constitutionalism (particularly the views of A. V. Dicey) and the democratic legitimacy of public finance. Currently ignored aspects of government behaviour are analysed in-depth, particularly the constitutional role of central banks and sovereign debt markets.

One of family law's greatest challenges within the 21st Century is facing the decreased rate of marriages and the increased number of unmarried co-habiting couples. All over the world, lawmakers and courts have met this challenge with different legal solutions. Currently, eleven American jurisdictions recognize the doctrine of common law marriage, but for other jurisdictions have abolished the doctrine within the last fifteen years. Common Law Marriage presents a thorough legal history of common law marriage, from its origins to current law and possible future developments in law. Dr. Goeran Lind researches current law by analyzing American cases, discussing the legal requirements for the establishment of a common law marriage, as to capacity, contract, implied agreement, cohabitation, holding out, and burdens of proof. As Lind points out, due to the choice of law principles, courts all over the United States must decide on common law marriages on a case-by-case basis. As long as couples move from one state to another, individual state courts in the United States must apply the doctrine of common law marriage and decide if such a marriage has been established when a couple has lived in, or visited, a common law marriage state. Common Law Marriage provides an avid look at the level of expertise regarding the doctrine of common law marriage and expresses the evident need for guidance concerning it.

Globally, the methodologies of legal education have not changed in any fundamental way, some methods dating back hundreds of years. Law schools have relied, for too long, on passive learning methods such as lectures or cases. Clinical legal education provides an alternative that is more than just another pedagogical method. It provides a way for students to experience their emerging professional selves, while providing services or projects with poor and underrepresented clients. This book documents both the historical origins of clinical experiments in the earliest days of US university legal education, and the now-global reach of clinical pedagogy as a proven tool for effective training of legal professionals.

Each generation of lawyers in common law systems faces an important question: what is the nature of equity as developed in English law and inherited by other common law jurisdictions? While some traditional explanations of equity remain useful - including the understanding of equity as a system that qualifies the legal rights people ordinarily have under judge-made law and under legislation - other common explanations are unhelpful or misleading. This volume considers a distinct and little noticed view of equity. By examining the ways in which courts of equity have addressed a range of practical problems regarding the administration of deliberately created schemes for the management of others' affairs, modern equity can be seen to have a strongly facilitative character. The extent and limits on this characterisation of equity are explored in chapters covering equity's attitude to administration in various public and private settings in common law systems.

This book studies the US Supreme Court and its current common law approach to judicial decision making from a national and transnational perspective. The Supreme Court's approach appears detached from and inconsistent with the underlying fundamental principles that ought to guide it, which often leads to unfair and inefficient results. This book suggests the adoption of a judicial decision-making model that proceeds from principles and rules, using them as premises for developing consistent unitary theories to meet current social conditions. This model requires that judicial opinions be informed by a wide range of considerations, including established legal standards, the insights derived from deductive and inductive reasoning, the lessons learned from history and custom, and an examination of the social and economic consequences of the decision.

'Great cases' are those judicial decisions around which the common law pivots. In a sequel to the instant classic Is Eating People Wrong?, this book presents eight new great cases from the United Kingdom, the United States and Australia. Written in a highly accessible yet rigorous style, it explores the social circumstances, institutions (lawyers, judges and courts) and ordinary people whose stories shaped the law. Across the courts' diverse and uncoordinated attempts to adapt to changing conditions and shifting demands, it shows the law as the living, breathing and down-the-street experience it really is. Including seminal cases in end of life, abortion and equal rights, this is an ideal introduction for students to legal history and jurisprudence.

This book provides a history of some of the main institutions of South African private law and in so doing explores the process through which integration of the English common law and the continental civil law came about in that jurisdiction. Here is a book aimed at both European and South African audiences. For European lawyers it provides a stimulating insight into the way the process of harmonization of private law has occurred in South Africa and may occur within the European Union. By analysing the historical evolution of the most important institutions of the law of obligations and the law of property the book demonstrates how the two legal traditions have been accommodated within one system. The starting point for each essay is the "pure" Roman-Dutch law as it was transplanted to the Cape of Good Hope in the years following 1652 (and as it has been examined in considerable detail in another volume edited by Robert Feenstra and Reinhard Zimmerman, published in 1992). The analysis focuses on how the Roman-Dutch law has been preserved, changed, modified or replaced in the course of the nineteenth century when the Cape became a British colony; and on what happened after the creation of the union of South Africa in 1910. Each essay therefore attempts, in the field of law with which it is dealing, to answer questions such as: what was the level of interaction between the civil law and the common law? What were the mechanisms that brought about the particular form of competition, coexistence or fusion that exists in that area of law? Is the process complete or is it still continuing? Is it possible to observe the emergence, from these two routes, of a genuinely South African private law? How is the result to be evaluated? In establishing reception patterns at the level of specific areas of law, they go beyond generalization about the compatibility of the two traditions and present evidence of a possible symbiosis of English and Continental law.
For South African readers the principal value of the book is that it offers essays by the most prominent South African private lawyers refelecting on the history of their subjects. It therefore constitutes the first stage in the writing of a history of substantive private law in South Africa. So far the focus has mainly been on the so called "external history" of South African law, and such texts as there are on the development of the institutions of private law are often in Afrikaans and mainly to be found in unpublished theses. Thus this book fulfils a real need for those teaching South African private law and legal history.
Although the volume investigates a specific aspect of the making of modern South African law it is imperative not to lose sight of the fact that private law in that country, as every way else did not develop in a vacuum, but as part of a wider political and social prcess. For this reason the book opens with an essay which contextualizes the contributions that follow, giving a view of the "setting" in which the development of South Africa took place: colonial domination, cultural imperialism, and racial and nationalistic ideologies. Two further introductory essays pay specific attention to the impact of the procedural framework on the substantive private law and to the "architects" of the mixed system.

Nothing is more important in English land law than 'possession'. It is the foundation of all title, rights and remedies. But what exactly is it, and why does it still matter? This book, first published in 2006, is about the meaning, significance and practical effect of the concept of possession in contemporary land law. It explains the different meanings of possession, the relationship between possession and title, and the ways in which the common law and equity do, and do not, protect possession. The rights and remedies of freeholders, tenants and mortgage lenders, between themselves and against third parties, are all to some extent dependent on questions of status and possession. This book shows how. It is designed to provide an understanding of the basic principles for the student, and answers to difficult, real problems for the practitioner.

Any effort to understand how law works has to take seriously its main players - judges. Like any performance, judging should be evaluated by reference to those who are its best exponents. Not surprisingly, the debate about what makes a 'great judge' is as heated and inconclusive as the debate about the purpose and nature of law itself. History shows that those who are candidates for a judicial hall of fame are game changers who oblige us to rethink what it is to be a good judge. So the best of judges must tread a thin line between modesty and hubris; they must be neither mere umpires nor demigods. The eight judges showcased in this book demonstrate that, if the test of good judging is not about getting it right, but doing it well, then the measure of great judging is about setting new standards for what counts as judging well.

This book is directed at the central difficulty in legal history: one is not reconstructing earlier answers to modern questions, but earlier questions; and they were different in kind. Today we see law as a system of substantive rules which can be explained in textbooks, altered by legislation, and embodied in a restatement or a code. It is somehow separate from society and needs separate adjustment; and there is a simple relationship between legal and other change. If this had always been so, legal and social and economic history would all be easy. They are not. Such a vision comes late in legal developments, and the common law reached that stage only in quite recent times. But ever since an early stage fortune has preserved copious original materials; and we can hope to trace not just the changing arrangements of one society, but the stages through which at least one legal system has passed, the changing ways in which the law itself has been seen. The underlying questions have always been beyond discussion in any practical context. How far are right and wrong man's business rather than God's? How and upon what terms are the resources of creation to be appropriated to individuals? But answers are at any one time assumed, and determine what smaller questions arise as daily business for those concerned with the legal process. It is to the changing nature of those practical questions that this book seeks to reduce the development of each of the main branches of the law.

Two central themes run through The Due Process of Law. The first is the workings of the various "measures authorised by the law so as to keep the streams of justice pure"--that is to say, contempt of court, judicial inquiries, and powers of arrest and search. The second is the recent development of family law, focusing particularly on Lord Denning's contribution to the law of husband and wife. These broad themes are elaborated through a discussion of Lord Denning's own judgments and opinions on a wide range of topics.