This volume contains a selection of the most important articles on the issue of the evolution of the common law. The notion that evolutionary forces would lead to common law efficiency has been very influential in the study of the economics of law. Even those scholars who do not believe that the law is efficient will find it useful to consider the evolutionary forces identified in this volume.In an even-handed approach, Professor Rubin has selected not only articles which advance the hypothesis of efficient evolution, but also those which claim that the evolutionary process is not efficient. Further articles show that the process is indeed sometimes efficient and sometimes not, and identify those conditions which bring about more of less efficiency in the evolution of law. This authoritative collection will be useful to anyone who is concerned with the sources of efficiency and inefficiency in the law, as well as to scholars pursuing research in this area.

This volume was originally published in 1925 and is a digest of the law and practice of the Bedouin Courts, together with an account of desert life and customs.

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

The Common Law is Oliver Wendell Holmes' most sustained work of jurisprudence. In it the careful reader will discern traces of his later thought as found in both his legal opinions and other writings. At the outset of The Common Law Holmes posits that he is concerned with establishing that the common law can meet the changing needs of society while preserving continuity with the past. A common law judge must be creative, both in determining the society's current needs, and in discerning how best to address these needs in a way that is continuous with past judicial decisions. In this way, the law evolves by moving out of its past, adapting to the needs of the present, and establishing a direction for the future. To Holmes' way of thinking, this approach is superior to imposing order in accordance with a philosophical position or theory because the law would thereby lose the flexibility it requires in responding to the needs and demands of disputing parties as well as society as a whole. According to Holmes, the social environment--the economic, moral, and political milieu--alters over time. Therefore, in order to remain responsive to this social environment, the law must change as well. But the law is also part of this environment and impacts it. There is, then, a continual reciprocity between the law and the social arrangements in which it is contextualized. And, as with the evolution of species, there is no starting over. Rather, in most cases, a judge takes existing legal concepts and principles, as these have been memorialized in legal precedent, and adapts them, often unconsciously, to fit the requirements of a particular case and present social conditions. Oliver Wendell Holmes, Jr. (1841-1935) served as chief justice of the Massachusetts Supreme Court and as an associate justice of the U.S. Supreme Court. He was nicknamed the "Great Dissenter" because of his many dissenting opinions. Holmes is also the author of Kent's Commentaries on the Law (1873) and "The Path of the Law" (1897). Tim Griffin has advanced degrees in philosophy and law, and has taught philosophy and legal theory courses at a number of universities. He is currently a seminarian pursuing ordination to the priesthood in the Episcopal Church.

The fourth collection of essays in this long-established series brings together some of the leading contributors to the study of the philosophical foundations of common law . Key issues in

contract, tort, and criminal law are subjected to philosophical scrutiny, the aim being to provide an exciting new basis for advanced teaching and further research.

"Cannibalism and the Common Law" is an enthralling classic of legal history. It tells the tragic story of the yacht Mignonette, which foundered on its way from England to Australia in 1884. The killing and eating of one of the crew, Richard Parker, led to the leading case in the defence of necessity, R. v. Dudley and Stephens. It resulted in their being convicted and sentenced to death, a sentence subsequently commuted. In this tour de force Brian Simpson sets the legal proceedings in their broadest historical context, providing a detailed account of the events and characters involved and of life at sea in the time of sail. Cannibalism and the Common Law is a demonstration that legal history can be written in human terms and can be compulsive reading. This brilliant and fascinating book, a marvelous example of eareful historical detection, and first-class legal history, written by a master.

This book seeks to question the widely held assumption in Europe that to have knowledge of law is simply to have knowledge of rules. There is a knowledge dimension beyond the symbolic which reaches right into the way facts are perceived, constructed and deconstructed. In support of this thesis the book examines, generally, the question of what it is to have knowledge of law; and this examination embraces not just the conceptual foundations, methods, taxonomy and theories used by jurists. It also examines the epistemological schemes used by social scientists in general in order to show that such schemes are closely related to the schemes of intelligibility used by lawyers and judges.

"The Spirit of the Common Law" is one of Roscoe Pound's most notable works. It contains the brilliant lectures he delivered at Dartmouth College in the summer of 1921. It is a seminal book embodying the spiritual essence of sociological jurisprudence by its leading prophet. This work is both a celebration of the common law and a warning for common law judges and lawyers to return to and embrace the pragmatism and judicial empiricism that define and energize the common law. The two fundamental doctrines of the common law, Pound writes, are the doctrine of precedents and the doctrine of supremacy of law. In an earlier preface, Justice Arthur J. Goldberg writes that "The Spirit of the Common Law" will always be treasured by judges and lawyers for its philosophy and history, but more importantly for Roscoe Pound's optimism and faith in the capacity of law to keep up with the times without sacrificing fundamental values. It is a faith built upon the conviction that the present is not to be divorced from the past, but rather that the past and the present are to be built upon to make a better future. Neil Hamilton and Mathias Alfred Jaren provide a biographical introduction to the book. They discuss the various influences upon Pound's scholarly pursuits and they analyze many of his writings that led up to "The Spirit of the Common Law." This volume is a necessary addition to the libraries of legal scholars and professionals, sociologists, and philosophers.

There have been few studies of the Law Lords, and no study of them by a political scientist for more than ten years. This book concentrates on the arguments the Law Lords use in justifying their decisions, and is concerned as much with the legal methodology as with the substance of their decisions. Very close attention is paid to the different approaches and styles of judicial argument, but the book is not restricted to this traditional analytic approach. One chapter applies the statistical techniques Americans call 'jurimetrics' and have successfully used on the US Supreme Court. The main theme is that the Law Lords enjoy and fully utilise far more discretion in their judgements than is normally admitted, and that much depends on exactly which judges happen to hear a case. the second part of the book shows the impact this extreme discretion has had in shaping both public law and areas of civil law.

William E. Nelson here proposes a new beginning in the study of colonial legal history. Examining all archival legal material for the period 1607-1776 and synthesizing existing scholarship in a four-volume series, The Common Law in Colonial America shows how the legal systems of Britain's thirteen North American colonies--initially established in response to divergent political, economic, and religious initiatives--slowly converged into a common American legal order that differed substantially from English common law.
Drawing on groundbreaking and overwhelmingly in-depth research into local court records and statutes, the first volume explores how the law of the Chesapeake colonies--Virginia and Maryland--diverged sharply from the New England colonies--Massachusetts Bay, Connecticut, New Haven, Plymouth, and Rhode Island--and traces the roots of these dissimilarities from their initial settlement until approximately 1660. Nelson pointedly examines the disparate motives of the legal systems in the respective colonies as they dealt with religion, price and labor regulations, crimes, public morals, the status of women, and the enforcement of contractual obligations. He reveals how Virginians' zeal for profit led to a harsh legal framework that efficiently squeezed payment out of debtors and labor out of servants; whereas the laws of Massachusetts were primarily concerned with the preservation of local autonomy and the moral values of family-centered farming communities. The law in the other New England colonies, Nelson argues, gravitated towards the Massachusetts model, while Maryland's law, gravitated toward that of Virginia.
Comprehensive, authoritative, and extensivelyresearched, The Common Law in Colonial America, Volume 1: The Chesapeake and New England, 1607-1660 is the definitive resource on the beginnings of the common law and its evolution during this vibrant era in America's history. William E. Nelson here proposes a new beginning in the study of colonial legal history.

Hong Kong is one of the very few places in the world where the common law can be practiced in a language other than English. Introduced into the courtroom over a decade ago, Cantonese has significantly altered the everyday working of the common law in China's most Westernized city. In "The Common Law in Two Voices," Ng explores how English and Cantonese respectively reinforce and undermine the practice of legal formalism.
This first-ever ethnographic study of Hong Kong's unique legal system in the midst of social and political transition, this book provides important insights into the social nature of language and the work of institutions. Ng contends that the dilemma of legal bilingualism in Hong Kong is emblematic of the inherent tensions of postcolonial Hong Kong. Through the legal dramas presented in the book, readers will get a fresh look at the former British colony that is now searching for its identity within a powerful China.

This work, like its two predecessors, is divided into two parts. Part One sets out in a clearly understandable manner the main principles underlying the law of negotiable instruments. Part Two contains the text of the Bills of Exchange Act 34 of 1964 (as amended by Act 56 of 2000) and conveniently and methodically deals consecutively with each section accompanied by a detailed commentary thereon.

This book is an analytical study of the current English law of traditional contracts of employment and of other personal employment contracts. Concentrating on the common law basis of individual employment law, it takes full account of relevant British and European Community legislation up to and including the Employment Act 2002. It argues for, and is constructed around a whole new category of employment contracts, which includes not only contracts of employment but also other "personal employment contracts", a concept which the author articulates and justifies.

A study of how English legal culture, with its strong emphasis on common law, engaged with the new ideas of the Enlightenment. This book explores how English legal culture, deeply imbued with the ideas and practices of common law, engaged with the new intellectual, institutional and cultural changes of the Enlightenment. It argues that common law survivedas an important part of English legal culture because it was able to meet the various challenges posed by Enlightenment rationalism and civic and commercial discourse. Drawing on works of jurisprudence, legal histories, manuals of law and notebooks of legal practice, and looking in detail at four pivotal, widely-discussed cases, the book illuminates the ways in which common law custom and tradition continued to be valued foundations for the authority of law, even during a period of political change, commercial growth and philosophical rationalism. Exploring the challenges to and adaptations within common law thinking in England in the late seventeenth and early eighteenth centuries, the book reveals that the common law played a much wider role beyond the legal world in shaping Enlightenment concepts. JULIA RUDOLPH is Associate Professor of History at North Carolina State University. She is the author of Revolution by Degrees: James Tyrrell and Whig Political Thought in the Late Seventeenth Century (Palgrave Macmillan, 2002), and of various articles on gender, crime, and the history of the book in early modern England. She has also edited a collection of theoretical and interdisciplinary essays entitled History and Nation (Bucknell University Press, 2006).

This book describes the encounter between the common law legal system and the tribal peoples of North America and Australasia. It is a history of the role of anglophone law in managing relations between the British settlers and indigenous peoples. That history runs from the plantation of Ireland and settlement of the New World to the end of the Twentieth century. The book begins by looking at the nature of British imperialism and the position of non-Christian peoples at large in the Seventeenth and Eighteenth centuries. It then focuses on North America and Australasia from their early national periods in the Nineteenth century to the modern era. The historical basis of relations is described through the key, enduring, but constantly shifting questions of sovereignty, status and, more latterly, self-determination. Throughout the history of engagement with common law legalism, questions surrounding the settler-state's recognition - or otherwise - of the integrity of the tribe have recurred. These issues were addressed in many and varied imperial and colonial contexts, but all jurisdictions have shared remarkable historical parallels which have been accentuated by their common legal heritage. The same questioning continues today in the renewed and controversial claims of the tribal societies to a distinct constitutional position and associated rights of self-determination. Mc Hugh examines the political resurgence of aboriginal peoples in the last quarter of the Twentieth century. A period of 'rights-recognition' was transformed into a second-generation jurisprudence of rights-management and rights-integration. From the 1990s onwards, aboriginal affairs have been driven by an increasingly rampant legalism. Throughout this history, the common law's encounter with tribal peoples not only describes its view of the aboriginal, but also reveals a considerable amount about the common law itself as a language of thought. This is a history of the voyaging common law.

This volume is based closely on the lectures delivered by The Hon. Justice W. M. C. Gummow at Oxford University in 1999 as part of the Clarendon law lectures series, sponsored by Oxford University Press. These lectures take up themes of continuity and change in the law, particularly as they appear in the great common law jurisdictions.

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. Book I: Of the Rights of Persons covers the key topics of constitutional and public law. Blackstone's inaugural lecture 'On the Study of the Law' introduces a series of general essays on the nature of law, including a chapter on 'The Absolute Rights of Individuals' . This is followed by an extended account of England's political constitution. The various categories of people or subjects are then surveyed, with special attention to the rights and obligations of masters and servants, husbands and wives, parents and children, and lastly 'artificial persons', or corporations. In addition to David Lemmings' introduction to the volume, Book I includes an introduction from the General Editor Wilfrid Prest.

In this unique book Lord Woolf recounts his remarkable career and provides a personal and honest perspective on the most important developments in the common law over the last half century. The book opens with a comprehensive description of his family background, which was very influential on his later life, starting with the arrival of his grandparents as Jewish immigrants to England in 1870. His recollections of his early years and family, education and life as a student lead into his early career as a barrister and as a Treasury Devil, moving on to his judicial career and the many roles taken therein. The numerous standout moments examined include his work on access to the judiciary, prison reform, and suggested reforms to the European Court of Human Rights. Fascinating insights into the defining cases of his career, T AG v Jonathan Cape, Gouriet v Union of Post Office Workers, Tameside, Hazel v Hammersmith, M v Home Office, remind the reader of how impactful his influence has been. He considers the setting of the mandatory component of the life sentences of Thompson and Venables and the Diane Blood case. Alongside the case law, and the Woolf Reforms, the Constitutional Law Reform Act 2005 is also explored. Considering the ebb and flow of changes over his remarkable judicial life, Lord Woolf identifies those he welcomes, but also expresses regret on what has been lost. A book to remind lawyers, be they students, practitioners or scholars, of the power and importance of law. All author profits from the book will be donated to the Woolf Institute.

The story of the English barristers and the culture of common law between 1690 and 1820 is a complex one. In Professors of the Law David Lemmings provides a wealth of detail about barristers' numbers, education, working habits, reputation, and self-image, and compares them with colonial American lawyers. The broad-ranging conclusion suggests that the bar ultimately failed English society and contributed to the marginalization of the common law.

This, the first volume to appear in the landmark new Oxford History of the Laws of England series, covers the years 1483 - 1558, a period of immense social, political, and intellectual change, which profoundly affected the law and its workings.

This volume arises from the inaugural Public Law Conference hosted in September 2014 by the Centre for Public Law at the University of Cambridge, which brought together leading public lawyers from a number of common law jurisdictions. While those from such jurisdictions share background understandings, significant differences within the common law world create opportunities for valuable exchanges of ideas and debate. This collection draws upon one of the principal sub-themes that emerged during the conference - namely, the the way in which relationships and distinctions between the notions of 'process' and 'substance' play out in relation to and inform adjudication in public law cases. The essays contained in this volume address those issues from a variety of perspectives. While the bulk of the chapters consider topical issues in judicial review, either on common law or human rights grounds, or both, other chapters adopt more theoretical, historical, empirical or contextual approaches. Concluding chapters reflect generally on the papers in the collection and the value of facilitating cross-jurisdictional dialogue.

Despite plague, fire, political upheaval and religious strife, in the 17th century English people of all kinds used mediation and arbitration routinely to help resolve their differences. Kings and poor widows were parties. Kings and yeomen arbitrated. Francis Bacon, Edward Coke, Samuel Pepys, Robert Hooke and James I himself all took what they called arbitrament for granted as the best way of resolving all kinds of disputes they could not manage themselves. The redoubtable Lady Anne Clifford was exceptional; she successfully withstood the insistent demands of James I to arbitrate in her land dispute with her husband and family. Women appear as often as men in many of the primary sources and have a chapter to themselves. There are five parts: Part One describes the background; Part Two the subject matter: land, family and business; Part Three the people: parties and arbitrators; Part Four the law, and Part Five draws conclusions. The 17th century saw great changes in English life, but few and only towards its end in the ways in which parties managed their disputes by arbitrament, usually asking an even number of third parties, first to arrange a settlement as mediators and, if that failed, to adjudicate as arbitrators. Parties relied on bonds to ensure each other's performance of the submission and award. But, as the century drew to its close, lawyers advised their clients to take advantage of the courts' offer to accept a claim and, with the parties' consent, to refer it to arbitration, with arbitrators appointed by the court. That process came to be called a rule of court and the Government established it by the Arbitration Act 1698.