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This volume is a selection of essays taken from the excellent range of papers presented at the British Legal History Conference hosted by the Institute for Legal and Constitutional Research at the University of St Andrews, 10–13 July 2019. The theme of the conference gives this book its title: ‘comparative legal history’. The topic came easily to the organisers because of their association with the St Andrews-based European Research Council Advanced grant project ‘Civil law, common law, customary law: consonance, divergence and transformation in Western Europe from the late eleventh to the thirteenth centuries’. But the chosen topic was also connected to the fact that this was, we think, the first British Legal History Conference held at a university without a Law faculty. Bearing in mind the question of how far institutional setting determines approach, our hope was that an element of fruitful comparison would stimulate people to think further about the range of approaches to legal history. With its explicit agenda of breaking down barriers, comparative legal history provided a particularly suitable focus for this investigation. After situating the subject matter of comparative legal history, and then discussing the levels of comparison that may be most fertile, this introduction moves on to considering the practical tasks of researching and writing such history, using the essays included in the volume to suggest ways ahead. The introduction groups the essays under certain headings: ‘Exploring legal transplants’; ‘Investigating broader geographical areas’; ‘Case law, precedent and relationships between legal systems’; and ‘Exploring past comparativists and the challenges of writing comparative legal history’. Yet the essays could be kaleidoscopically rearranged under many headings. We hope that the book, like a successful conference, includes many stimulating conversations.
Throughout the Commentaries, Blackstone repeatedly availed himself of comparative legal history. Comparison allowed him to detect the invariable principles of legal experience and organise his systematic exposition of English law around them. This method proved crucial in Blackstone’s treatment of custom, as it allowed him to present the chief source of English common law by addressing the main questions concerning the nature of custom that had been raised earlier by Western jurisprudence. The paper will explore the depth of Blackstone’s engagement with such traditions. In doing so, it will investigate whether custom was understood differently on the two sides of the Channel.
Making property law means more than identifying a legitimate and substantively appealing conception of property. It also requires answering three further (and somewhat related) questions. First, what are the appropriate institution(s) for creating, interpreting, and developing property law (the institutional question)? Second, to what extent can a legal system that embraces the liberal conception of property also comply with the rule of law? Third, what are the limits (if any) of the authority of property law’s architects?
The picture of the early perception of English common law in Germany is still quite blurred. From the 17th century on, English constitutional matters and political philosophy attracted the attention of German academics. But it is not until around 1750 that interest stirred in English private and criminal law. Due to its close connections with the Hanoverian court, Göttingen soon established itself as the epicentre of this early German academic anglophilia. Even though around that time England had begun to feature on travel maps of the grand tour, few German scholars had sufficient command of the English language to engage with original British literature. Initially, interested German legal academics therefore often had to rely on translations of English works into Latin, German or French. One of the earliest German treatises on English law, Christian Hartmann Samuel Gatzert’s Latin Commentatio iuris exotici historico-litteraria de iure communi Angliae. Of the Common Law of England (Göttingen 1765), is testament to this. But other literary products had paved the way to Gatzert’s Commentatio: the literature reviews of the bustling scene of learned journals. Using the example of the Göttingische gelehrte Anzeigen (first published in 1739), the paper addresses the question how German learned journals treated contemporary publications on English law. It analyses the challenges faced by the reviewers, amongst others a problematic continental-legal perspective and grave misunderstandings concerning the English legal system, and assesses the role the Göttingische gelehrte Anzeigen played in disseminating knowledge about English law and in offering a wider German readership glimpses at a foreign legal system, c. 1739–1775.
Common Law, Civil Law, and Colonial Law builds upon the legal historian F.W. Maitland's famous observation that history involves comparison, and that those who ignore every system but their own 'hardly came in sight of the idea of legal history'. The extensive introduction addresses the intellectual challenges posed by comparative approaches to legal history. This is followed by twelve essays derived from papers delivered at the 24th British Legal History Conference. These essays explore patterns in legal norms, processes, and practice across an exceptionally broad chronological and geographical range. Carefully selected to provide a network of inter-connections, they contribute to our better understanding of legal history by combining depth of analysis with historical contextualization. This title is also available as Open Access on Cambridge Core.
Religion can play a considerable role in the protection of natural resources. The Ecological Spirituality movement is enjoying growing success crowned by the UNEP Faith for Earth initiative. In Muslim countries this movement is emerging. However, it has not yet been able to extensively exploit the law. Indeed, the particularity of the religion of Islam is that it is intertwined with the law. Consequently, this is an opportunity to strengthen environmental law. There are at least six reasons that explain the interest of the extension of Ecological Spirituality in the sphere of environmental law. These same reasons also explain the urgency of adopting a new research agenda in the field of environmental law in Muslim countries.
In most countries and universities, few legal scholars pursue their academic careers in a country that is different from their home jurisdiction. However, the UK is a rare exception, as its universities have shown a great willingness to appoint legal scholars from any legal tradition and any part of the world. As the topic of foreign-trained legal scholars is underexplored in the current literature, this paper aims to fill the gap. It identifies 539 foreign-trained legal scholars at Russell Group universities, which amounts to 36.69% of their academic staff in law. Subsequently, the paper presents the results of a survey which explored how respondents deal with the challenges of being based at UK universities, such as the possible expectation to assimilate to the UK legal environment, and considering the impact of the result of the Brexit referendum. Overall, the paper finds that foreign-trained legal scholars should not be regarded as (negative) ‘irritants’ to UK legal scholarship and education, but that they can be rather be seen as (positive) ‘change agents’ in their universities.
This concluding chapter aims to bring together the themes explored in the book, and to identify several research contexts that can largely benefit from the collection. Part I offers a birds-eye view of all book chapters, noting the differences in the evolution of the analysed systems’ administrative law. Swati Jhaveri’s five-pronged typology of the public law of common law systems, presented in Chapter 1, is discussed in Part II, which explores several aspects of each of these sub-categories, critically considers their internal logic, and assesses the utility of this typology. Part III aims to provide a tentative explanatory framework for the analysis of the reasons that have led to the different transformation patterns of the administrative law of these systems. Three bodies of social science research that study change but have little to say on legal change are addressed, and supplemented by an application of Donald Horowitz’s four approaches to legal change, which offer explanatory paradigms for legal change over time. This part ends with a proposal of a five-dimensional grid designed to ease the process of defining factors that may have implicated on change. The chapter ends with a discussion of the robustness of the classic classification of legal systems into ‘legal families’ in general and of the common-law family in particular.
The common ground between religions could be fruitfully promoted in order to call for an effective protection of the climate system. Positioned at a junction of different worlds, this book is a multidisciplinary work on Islamic law, common law and environmental law. Looking at the past, present and future, the author suggests a paradigm shift starting from the common ground in order to propose a better future for environmental law in Muslim countries. As the first book to compare Shari'a and common law in field of environmental protection, it suggests a new path in comparative environmental law by recognizing the contributions of both history and spirituality.
It examines the dispute solution options the contracting parties have when their cross-border transaction turns sour. The traditional answer is that international arbitration is the best option to govern cross-border disputes. Yet recent trends have improved the enforceability of foreign judgments. This chapter argues that the foreign judgment is catching up with the foreign arbitral award in terms of enforceability. After introducing the consistent enforceability of foreign judgments in common law countries, it highlights a number of contemporary trends that are gradually improving the enforceability of foreign judgments in civil law countries. In the end, it discusses the fledgling potential of the 2005 Hague Convention on Choice of Court Agreements to standardise the law and practice of enforcement of judgments made by designated courts in exclusive choice of court agreements.
In Chapter 4, I interpret Joe Ma’s Lawyer, Lawyer (1997; 算死草), a farcical comedy of seemingly little jurisprudential value, as a response to debates about the future of the common law in Hong Kong after 1997. In the years leading up to the handover, there were heated discussions of whether the common law should continue to be cited in the territory after China resumed sovereignty, and if so, what kind of authority English precedent should have. While some staunch common law lawyers argued for preserving English law’s privileged status, more reform-minded jurists argued for cutting the territory’s “constitutional umbilicus” from England by relying on local cases. I will contend that the lawyer in Ma’s film wins his case by relying on an English precedent case that is hinted at, but not explicitly mentioned, and further suggest that his highly unorthodox way of citing precedent provides an indication of how Hong Kong can conceive of the place of the English common law after 1997.
This chapter examines the common assumption that, whereas Elizabeth I’s reign was at the zenith of the age of common law, we have now moved into an age of statute. The Elizabethans themselves thought this was already happening: there were so many matters, such as poor relief and economic regulation, which the common law was powerless to tackle. The volume of legislation has continued to increase dramatically, and yet the sphere of the common law is still large and the interpretation of statutes is governed by common-law principles. The fiction of legislative intent, the concept of equity, and the mischief rule were all much the same as today’s interpretative techniques. The largest jurisprudential change has been the common law’s loss of immortality. A statute can, in an instant, extinguish an immemorial principle of law. The extinction survives the repeal of the statute, so that much of the current law is contained in repealed statutes. In this connection, the effects of the Interpretation Acts are considered. Legislation has come to dominate the law in terms of abrogative power as well as bulk, but the common law is superior in terms of clarity, flexibility and self-correction.
Comparative legal history is generally understood to involve the comparison of legal systems in different countries. This is an experiment in a different kind of comparison. The legal world of the first Elizabethans is separated from that of today by nearly half a millennium. But the past is not a wholly different country. The common law is still, in an organic sense, the same common law as it was in Tudor times and Parliament is legally the same Parliament. The concerns of Tudor lawyers turn out to resonate with those of the present and this book concentrates on three of them: access to justice, in terms of both cost and public awareness; the respective roles of common law and legislation; and the means of protecting the rule of law through the courts. Central to the story is the development of judicial review in the time of Elizabeth I.
This is the first of three chapters dealing with directors’ duties. The duties are divided into two themes: duties of care, skill and diligence, and duties of loyalty and good faith. The focus in this chapter is on the duties of care, skill and diligence. These duties are imposed by the common law, equity and ss 180(1) and 588G of the Corporations Act. This chapter commences with the common law and equitable foundations of the duty of care, skill and diligence, and considers their adoption into statute and the current law within s 180. It examines the safe harbour provided by the business judgment rule in s 180(2), and recent discussion on the scope and application of that rule.
In Chapter 2, you were introduced to common law — a body of law that was commonly practised by judges throughout the English jurisdiction. Alongside the common law, equity developed as a body of principles designed to ‘soften’ the rigidity and injustice perpetuated by the common law and, in particular, its writ system. These two bodies of law emerged from judicial decision-making and, therefore, are bodies of law created entirely by judges.
The ‘new NAFTA’ agreement between Canada, Mexico, and the United States maintained the system for binational panel judicial review of antidumping and countervailing duty determinations of domestic government agencies. In US–Mexico disputes, this hybrid system brings together Spanish and English-speaking lawyers from the civil and the common law to solve legal disputes applying domestic law. These panels raise issues regarding potential bicultural, bilingual, and bijural (mis)understandings in legal reasoning. Do differences in language, legal traditions, and legal cultures limit the effectiveness of inter-systemic dispute resolution? We analyze all of the decisions of NAFTA panels in US–Mexico disputes regarding Mexican antidumping and countervailing duty determinations and the profiles of the corresponding panelists. This case study tests whether one can actually comprehend the ‘other’. To what extent can a common law, English-speaking lawyer understand and apply Mexican law, expressed in Spanish and rooted in a distinct legal culture?
This chapter examines tracing and identifies it as a process or mechanism rather than a remedy or a claim. It is based on a proprietary claim which gives the claimant an advantage over others and involves a owner identifying an asset in the hands of a third party. The right to trace lies in both common law and in equity although many academics have argued that it would be better to have just one system. The right to trace at common law depends on proof of legal ownership. The right is lost once the property has become mixed. The rules of equity are far more flexible than those at common law becuase it allows tracing through mixed funds. The right to trace in equity depends on proof of an initial fiduciary relationship and the claimant has the equitable title or beneficial interest. Special rules have developed for tracing in equity through bank accounts. These vary as to whether or not the funds are mixed with those of the trustee or between two innocent volunteers. There are limits to equitable tracing including where the bona fide purchaser for value without notice of the equitable interests; dissipation of the funds and also where it is inequitable to trace.
This chapter traces the historical background to equity as a separate system. It examines the defects of the common law. In particular the failure to recognise certain rights such as those of the mortgagor or of a beneficiary under a trust. It explains that equity is a 'gloss' on the common law and is not a complete system of rules. It traces the role of the Lord Chancellor in the development of equity. It describes how equity also became unpopular and inflexible and litigants often had to take two actions one in the courts of equity and one in the courts of common law. Eventually the two systems were fused under the Judicature Acts of 1873-1875. Many question whether there was complete fusion as equity continues to exist as a separate system relying on discretion. Equity relies on a number of maxims which serve as guidance to the courts but are not enforceable as binding principles of law.
Notwithstanding Josserand’s ardent and decades-long exhortations, the theory has remained controversial in France; a proposal in the mid-twentieth century to bring it into the Civil Code was abandoned. The Benetton case offers a troubling illustration of the potential for arbitrariness left in Josserand’s wake. Because its courts express themselves in English, Louisiana is a convenient example of the many civil law jurisdictions which pay lip service to abuse of right but scarcely apply it. The common law does just as well without it (as good judges everywhere, unenthusiastic about the expansion of judicial discretion, seem to prefer). The Himpurna case provides an illustration of the unnecessary invocation of abuse of rights.
‘Abuse of rights’ cannot be defined without using open-textured formulations which impede predictability. Bin Cheng did not call abuse of rights a principle, but a theory. In his laudatory preface of Jean-David Roulet’s comprehensive rejection of the notion that it could serve as a rule of international law, Cheng in fact declined to take a position as to ‘the place of the theory in international law’. Among national legal systems, the most notable movement to establish a principle of abuse of rights (expressed nowhere in the French Civil Code) arose in France at the end of the nineteenth century. It was, and remains, controversial. The common law has found ways to place limitations on the attempted exercise of rights without using the generic reference to abuse as a rule of decision. Conceptually, the notion of abuse of rights is not a necessary corollary to that of good faith.