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Volume 8, the third of the historical volumes of A Treatise of
Legal Philosophy and General Jurisprudence, offers a history of
legal philosophy in common-law countries from the 17th to the 19th
century. Its main focus (like that of Volume 9) is on the ways in
which jurists and legal philosophers thought about law and legal
reasoning. The volume begins with a discussion of the 'common law
mind' as it evolved in late medieval and early modern England. It
goes on to examine the different jurisprudential traditions which
developed in England and the United States, showing that while
Coke's vision of the common law continued to exert a strong
influence on American jurists, in England a more positivist
approach took root, which found its fullest articulation in the
work of Bentham and Austin.
New analysis and interpretation of law and legal institutions in
the "long eighteenth century". Law and legal institutions were of
huge importance in the governance of Georgian society: legislation
expanded the province of administrative authority out of all
proportion, while the reach of the common law and its communal
traditions of governance diminished, at least outside British North
America. But what did the rule of law mean to eighteenth-century
people, and how did it connect with changing experiences of law in
all their bewildering complexity?This question has received much
recent critical attention, but despite widespread agreement about
Law's significance as a key to unlock so much which was central to
contemporary life, as a whole previous scholarship has only offered
a fragmented picture of the Laws in their social meanings and
actions. Through a broader-brush approach, The British and their
Laws in the Eighteenth Century contributes fresh analyses of law in
England andBritish settler colonies, c. 1680-1830; its expert
contributors consider among other matters the issues of
participation, central-local relations, and the maintenance of
common law traditions in the context of increasing legislative
interventions and grants of statutory administrative powers.
Contributors: SIMON DEVEREAUX, MICHAEL LOBBAN, DOUGLAS HAY, JOANNA
INNES, WILFRED PREST, C.W. BROOKS, RANDALL MCGOWEN, DAVID THOMAS
KONIG, BRUCE KERCHER
Network and Connections in Legal History examines networks of
lawyers, legislators and litigators, and how they shaped legal
development in Britain and the world. It explores how particular
networks of lawyers - from Scotland to East Florida and India -
shaped the culture of the forums in which they operated, and how
personal connections could be crucial in pressuring the legislature
to institute reform - as with twentieth century feminist campaigns.
It explores the transmission of legal ideas; what happened to those
ideas was not predetermined, but when new connections were made,
they could assume a new life. In some cases, new thinkers made
intellectual connections not previously conceived, in others it was
the new purposes to which ideas and practices were applied which
made them adapt. This book shows how networks and connections
between people and places have shaped the way that legal ideas and
practices are transmitted across time and space.
This collection of original essays brings together leading legal
historians and theorists to explore the oft-neglected but important
relationship between these two disciplines. Legal historians have
often been sceptical of theory. The methodology which informs their
own work is often said to be an empirical one, of gathering
information from the archives and presenting it in a narrative
form. The narrative produced by history is often said to be
provisional, insofar as further research in the archives might
falsify present understandings and demand revisions. On the other
side, legal theorists are often dismissive of historical works.
History itself seems to many theorists not to offer any
jurisprudential insights of use for their projects: at best,
history is a repository of data and examples, which may be drawn on
by the theorist for her own purposes. The aim of this collection is
to invite participants from both sides to ask what lessons legal
history can bring to legal theory, and what legal theory can bring
to history. What is the theorist to do with the empirical data
generated by archival research? What theories should drive the
historical enterprise, and what wider lessons can be learned from
it? This collection brings together a number of major theorists and
legal historians to debate these ideas.
This collection of original essays brings together leading legal
historians and theorists to explore the oft-neglected but important
relationship between these two disciplines. Legal historians have
often been sceptical of theory. The methodology which informs their
own work is often said to be an empirical one, of gathering
information from the archives and presenting it in a narrative
form. The narrative produced by history is often said to be
provisional, insofar as further research in the archives might
falsify present understandings and demand revisions. On the other
side, legal theorists are often dismissive of historical works.
History itself seems to many theorists not to offer any
jurisprudential insights of use for their projects: at best,
history is a repository of data and examples, which may be drawn on
by the theorist for her own purposes. The aim of this collection is
to invite participants from both sides to ask what lessons legal
history can bring to legal theory, and what legal theory can bring
to history. What is the theorist to do with the empirical data
generated by archival research? What theories should drive the
historical enterprise, and what wider lessons can be learned from
it? This collection brings together a number of major theorists and
legal historians to debate these ideas.
For nineteenth-century Britons, the rule of law stood at the heart
of their constitutional culture, and guaranteed the right not to be
imprisoned without trial. At the same time, in an expanding empire,
the authorities made frequent resort to detention without trial to
remove political leaders who stood in the way of imperial
expansion. Such conduct raised difficult questions about Britain's
commitment to the rule of law. Was it satisfied if the sovereign
validated acts of naked power by legislative forms, or could
imperial subjects claim the protection of Magna Carta and the
common law tradition? In this pathbreaking book, Michael Lobban
explores how these matters were debated from the liberal Cape, to
the jurisdictional borderlands of West Africa, to the occupied
territory of Egypt, and shows how and when the demands of power
undermined the rule of law. This title is also available as Open
Access on Cambridge Core.
Written in memory of Christopher W. Brooks, this collection of
essays by prominent historians examines and builds on the scholarly
legacy of the leading historian of early modern English law,
society and politics. Brooks's work put legal culture and legal
consciousness at the centre of our understanding of seventeenth-
and eighteenth-century English society, and the English common law
tradition. The essays presented here develop a number of strands
found in his work, and take them in new directions. They shed new
light on central debates in the history of the common law,
exploring how law was understood and used by different communities
in early modern England, and examining how and why people engaged
(or did not engage) in litigation. The volume also contains two
hitherto unpublished essays by Christopher Brooks, which consider
the relationship between law and religion and between law and
political revolution in seventeenth-century England.
Network and Connections in Legal History examines networks of
lawyers, legislators and litigators, and how they shaped legal
development in Britain and the world. It explores how particular
networks of lawyers - from Scotland to East Florida and India -
shaped the culture of the forums in which they operated, and how
personal connections could be crucial in pressuring the legislature
to institute reform - as with twentieth century feminist campaigns.
It explores the transmission of legal ideas; what happened to those
ideas was not predetermined, but when new connections were made,
they could assume a new life. In some cases, new thinkers made
intellectual connections not previously conceived, in others it was
the new purposes to which ideas and practices were applied which
made them adapt. This book shows how networks and connections
between people and places have shaped the way that legal ideas and
practices are transmitted across time and space.
Written in memory of Christopher W. Brooks, this collection of
essays by prominent historians examines and builds on the scholarly
legacy of the leading historian of early modern English law,
society and politics. Brooks's work put legal culture and legal
consciousness at the centre of our understanding of seventeenth-
and eighteenth-century English society, and the English common law
tradition. The essays presented here develop a number of strands
found in his work, and take them in new directions. They shed new
light on central debates in the history of the common law,
exploring how law was understood and used by different communities
in early modern England, and examining how and why people engaged
(or did not engage) in litigation. The volume also contains two
hitherto unpublished essays by Christopher Brooks, which consider
the relationship between law and religion and between law and
political revolution in seventeenth-century England.
This book explores the intellectual contexts in which the
development of tort law took place in Europe. With contributions
from legal theorists, social and intellectual historians and
comparative lawyers, it examines how conceptions of community and
responsibility changed over time, providing a context both for new
notions of the role of the state in protecting its citizens and for
new interpretations of older private law concepts. The book also
examines how the law of tort was shaped and applied by judges in
the codified and uncodified systems, comparing the common law
system of England with the systems in France and Germany, whose
codes were created in very different contexts. The book includes
chapters that look at the role of experts in shaping the law's
response to workplace hazards and concludes with a discussion of
the role of academic networks in developing the notion of a
European private law.
In this book, Michael Lobban argues that a proper understanding of
English law and jurisprudence in the period is needed to clarify
the nature of common-law practice and the way in which it was
envisaged by its practitioners. He questions some commonly-accepted
views of the nature of the common law itself and argues that
attempts - notably those by Blackstone and Bentham - to expound or
to criticize common law in essentially theoretical terms were
mistaken. His approach is not a philosophically-based one, but he
is concerned with the evolution and spread of judicial ideas which
were grounded upon the work of moral and political philosophers,
and makes a valuable corrective contribution to our historical
understanding of a critically important period in legal history.
What can legal theorists learn from legal historians? What guidance
can historians take from theorists? What theoretical questions
underlie legal historical investigations? These are the questions
explored and answered by the articles selected in this volume.
Taken together, these papers show that the future of historical
jurisprudence is a bright one. This is a jurisprudence that can
yield insights about how to conceptualise legal change, how to give
voice to those operating outside of legal officialdom, and how to
understand the relationship between law and politics. The papers
selected range from the challenge to legal positivism from the
perspective of the history of the common law, to the latest
methodological debates in socio-historical jurisprudence. The
volume contains a substantive introduction and a detailed
bibliography.
Law and History contains a broad range of essays by prominent legal historians, which explore the ways in which history has been used by lawyers. Largely theoretical in focus, the volume covers a broad range of issues, including discussions of norms in medieval England, the works of Montesquieu, Maine, and Weber, and of the nature of legal argument in nineteenth-century England, and in twentieth- century war crimes trials.
This major new study examines the use of political trials by the
apartheid regime in South Africa against its opponents in the
1970s, the decade when the ideology of apartheid was reaching its
apogee. After tracing the early history of the South African
Students Organization and the Black People's Convention, it shows
how the state reacted to the threat posed by the black
consciousness movement by launching a major trial of ideas, using
the notorious Terrorism Act. It examines how, at the same time, the
authorities sought to crack down on white dissent by prosecuting
the leaders of the National Union of South African Students. By
making a detailed study of trial transcripts in addition to other
materials, it explores how the state sought to infiltrate and crush
nascent ANC and PAC structures which were reemerging in the mid
1970s within South Africa. It shows how the prosecution policy and
legal strategy of the state changed during the decade as the nature
of the threats it faced altered, culminating in the trial of the
leaders of the Soweto Students Representative Council in 1979 for
sedition. Arguing that the political trial was perhaps the only
venue where white ideology had to engage directly with black
protest, this original and thought-provoking account demonstrates
how the trials became platforms competing views of society and
politics which give a unique insight into the conflict between the
political ideals held by blacks and whites in this era. It also
reveals how large a part politics played in securing the conviction
of many dissidents, and the extent to which events beyond the
courtroom affected the detention and torture of many activists.
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