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Marriage is not a timeless ritual devoted to consecrating the private feelings between two individuals, but rather a legal and social institution policed “at its entrance and exit” by the state and capable of extraordinary change over time. Beginning in the early colonial period and ending with gay and lesbian marriage reform in the early twenty-first century, this chapter traces three crucial shifts in the history of marriage: first, the shift from informal cohabitation to official state-sanctioned marriage; second, the gradual tilting of the balance away from male headship to liberal individualism; and finally, the deinstitutionalisation of marriage in the early twenty-first century. On one level, this is a story of progress. For much of the Victorian era marriage was an institution that legally codified relations of male dominance and female submission, confining women to the private sphere, turning them into dependent wives, taking away their children in cases of divorce and sanctioning marital violence. A series of legislative shifts across the two centuries, particularly the Married Women’s Property Acts and Divorce Law Reform, as well as social movements towards gender equality have replaced the principle of male headship that once characterised marriage with more egalitarian notions of liberal individualism. What constitutes the terms of marriage and the partners to a marriage is now largely a matter for individuals rather than the state. Yet this legal history is more elliptical than linear, and less triumphalist than we might imagine. Our preference for cohabitation today could be paralleled to that of colonists in early colonial Australia, polygamy continues to be prohibited by law and, far from marriage having been displaced by de-facto arrangements it maintains its position at the pinnacle of social and legal hierarchies of intimacy.
Indigenous people have been subject to racialised legislation and practice across all jurisdictions in Australia. This chapter characterises the fight against these as the Aboriginal civil rights movement. We trace key moments is this history, looking at the connections and movement building undertaken by different Indigenous people and organisations. Starting in 1927 with the founding of Australian Aboriginal Progressive Association (AAPA), the other significant political resistance we look at are - 1938 Day of Mourning, 1956 founding of the Australian-Aboriginal Fellowship (AAF), 1958 the Federal Council for Aboriginal Advancement (FCAA), the 1965 Freedom Rides, and the 1967 Referendum. We end by turning to the 1970s Black Power movement and the new ways Aboriginal people undertook social change battles.
Since the beginning of white settlement in Australia, the law of civil wrongs has reflected a tension between the constraints imposed by being part of an imperial structure which formally mandated ‘one common law’ for the empire with the need for the law of civil wrongs to be appropriate to the different social and environmental conditions in Australia. For much of this history, genuine attempts by Australian legislatures and courts to adapt the law of civil wrongs were masked by the self-identification of Australian lawyers as members of the British race, of which the common law was a cultural artefact, and the resultant need to identify local legal development as within that tradition. This chapter attempts to unpack the rhetoric from the reality. It argues that, from the very first, there was a distinct pluralism that operated within the law of civil wrongs in Australia, one that allowed for Australian exceptionalism that remained within the accepted limits of the one common law approach.
The Introduction sets out the central premise of the book: a sea change in our understanding of the human brain has deep, unexamined implications for intellectual property law. The Introduction begins to build the case for this argument by providing a brief description of the techniques used to detect the biological mechanisms attendant to different thought processes. It connects these techniques to the relevant actors whose perspectives structure the book’s three main parts: artists, audiences, and judges. Neuroscientific lessons for intellectual property law should be approached with a mixture of hope and caution. The hope comes from replacing some of the mistaken hunches about artists and audiences that have shaped intellectual property law for decades. The caution comes from a need to avoid junk science and neuroscientific theories that could do damage to the underlying aims of copyright, patent, and trademark law.
In his 1935 judgment in Woolmington v DPP, Viscount Sankey declared the prosecution's burden of proving the accused's guilt was a ‘golden thread’, running ‘throughout the whole web of English criminal law’. This paper explores what Woolmington can tell us about the appeals process – and about the criminal law itself – less than 30 years after the first automatic right to appeal was created in English criminal law. It argues that the decision helps us understand the political pressures that could help to form – and make possible – legal decisions during this period. And it finds that the Woolmington decision itself – both in the text of the decision and in its immediate reception – was more universal than it was fundamental. Woolmington, I argue, has always been more about the high-level principles of English criminal law than about securing any kind of minimal procedural rights for a defendant.
This chapter is the first of two chapters that uses the theory of the reasoning state to harmonize our understanding of other debates. There are two main existing theories of administrative procedure and law. An older, normative theory from the legal tradition argues that administrative law exists to promote values of fairness, transparency, and deliberation. A more recent theory, advocated by Mat McCubbins, Roger Noll, and Barry Weingast, is that administrative law exists to promote political control over administrative bodies. The theory of the reasoning state suggests another view. It indicates the positive value of fairness, transparency, and deliberation in administrative law. Those features, long thought central by legal scholars, lacked a positive foundation. Yet they all serve to promote the publicly credible reasoning of administrative bodies, core to the political value of delegated authority.
In this chapter, I look at the development of Jewish and Islamic commercial law over the early Islamic centuries to argue that the Islamic "commercial revolution" may be found in the eleventh rather than the eighth century. I argue, therefore, that any migration of Jews westward in the early Islamic centuries was not the result of such a commercial revolution.
Just like racial difference, whiteness is a social construct. The paradox of race and of whiteness is that white or nonwhite skin color means nothing in itself; rather, what matters is the social meaning that is ascribed to these differences in color. This essay examines the way whiteness has historically been constructed in both law and literature. Exploring the parallel between legal and literary histories, it refers to the literature of naturalism – Frank Norris’s The Octopus and Stephen Crane’s Maggie – as well as to the racial prerequisite cases, in which immigrants had to prove they were white and hence eligible for naturalization. In law as much as in literature, whiteness is far from homogenous, but instead seems to be eclipsed into infinite shades of whiteness. At the same time, in both literature and law, whiteness is not only linked to skin color, but to culture as well. In Crane’s novella, the cultural compatibility of the Irish is seen as dubious at best. Similarly, the Chinese cook in Norris’s novel is portrayed as culturally alien and hence as unassimilable. This essay proposes that the potential whiteness of immigrant groups is being contested in both the court of law and that of literature.
Recent colonial compensation lawsuits reflect the metamorphosis of historical grievances in collective public memory into tort claims in private law. This article provides a synthetic view of the nexus of colonial law and history in South Korea–Japan relations, focusing on cross-border litigation brought by former forced laborers and victims of sexual servitude known as “comfort women” during World War II. The concept of public policy (ordre public) in Korea, which has colonial origins, has long served law courts as the standard for deciding the validity of a juristic act. But of late heavy reliance on the general clauses of law in legal proceedings has risked turning history and law into handmaids of national spirit, muddling historical accountability and legal liability. Improvement of South Korea–Japan ties should start from a more accurate understanding of colonial laws and a rounded appreciation of their shared legal history.
Professor Bill Cornish was a legal scholar of vision, who was well ahead of his time in two widely disparate areas, and in both he became a recognised leader and authority: legal history and intellectual property law. In the former he applied what was then the novel approach of stressing the contemporary social conditions to which the extant law had to apply - something that modern commentators could well ponder, but which he was honest enough to acknowledge was also criticised by some of his peers at the time. As for intellectual property law, his place as the ‘father of intellectual property teaching and scholarship in the UK’ was acclaimed by his admission as a Fellow of the British Academy in 1984, and his place as the inaugural occupant of the Herchel Smith Professor of Intellectual Property Law, at Cambridge (1995–2004). Both these activities had their origins in Bill's long stay (1970–1990) as professor of law at the London School of Economics, where he was influenced by their emphasis on societal tertiary education, and his friendship with the renowned Anglo-German scholar Otto Kahn-Freund, respectively. In reality, though, Bill's upbringing in the unique milieu of immediate post-War South Australia, which he describes as a backwater of tranquility, and his urge to see Europe were the roots of his expansive vision of the law. Lesley Dingle interviewed Bill for the Eminent Scholars Archive (ESA) in 2015, nine years after his retirement, and these observations of this remarkable scholar are based on those conversations, and her readings of his works.
The just organization of caregiving labor – in the workplace and in the home – is critical to democratic vitality. The Covid-19 pandemic rendered visible the failure of US law and policy to distribute care work fairly and to recognize its value. Lack of support for caregivers has jeopardized social reproduction and deepened gender, race, and class inequalities. The care crisis, however, was not an inevitability. From the New Deal through the close of the twentieth century, labor feminists pursued social supports for care. They advocated along three axes: public entitlements for care in the home, workplace regulation supportive of working caregivers, and the collective organization of paid care workers. The history of this advocacy helps to illuminate the path toward more robust forms of social citizenship.
The appointment of recent Attorney-Generals for England and Wales has occasioned much comment about their experience. This paper considers whether, following the transmogrification of the Lord Chancellorship over a decade ago, the backgrounds and activities of recent leaders of the Attorney-General's Office suggest the time is now right for similar changes to the Law Officers’ roles. In doing so, it presents a range of original data on aspects of the role and on characteristics of Attorney-Generals, which suggests that unless self-restraint is exercised (by the Prime Minister and the post-holders) we may ineluctably be on the path to reform.
Legal fictions are falsehoods that the law knowingly relies on. It is the most bizarre feature of our legal system; we know something is false, and we still assume it. But why do we rely on blatant falsehood? What are the implications of doing so? Should we continue to use fictions, and, if not, what is the alternative? Legal Fictions in Private Law answers these questions in an accessible and engaging manner, looking at the history of fictions, the theory of fictions, and current fictions from a practical perspective. It proposes a solution to what to do about fictions going forward, and how to decide whether they should be accepted or rejected. It addresses the latest literature and deals with the law in detail. This book is a comprehensive analysis of legal fictions in private law and a blueprint for reform.
This chapter tells the history of legal fictions from the emergence of the common law in the twelfth century until the abolition of the forms of action in 1852. It begins with an overview of the procedural framework which allowed, and encouraged, fictions. It then considers eleven old fictions: (i) dominus remisit curiam; (ii) vi et armis; (iii) geographical fictions; (iv) bill of Middlesex; (v) the writ of quominus; (vi) benefit of clergy; (vii) pleading the belly; (viii) common recovery; (ix) trover; (x) ejectment; and (xi) quasi-contract. For each fiction, I identify the reason for its existence, its development, its manner of operation and its effect on the law. Importantly, the fictions are classified in a way which explains their survival or extinction. This Effect Classification distinguishes between Jurisdictional, Auxiliary and Essential Fictions. The Effect Classification plays a central role in the Acceptance Test, which is the thesis of the book.
H. Patrick Glenn has built his idea of legal traditions, common laws, and the cosmopolitan state by observing the evolution of law. He learned a lot from legal history. But what can legal historians learn from him? In this chapter, I show that his idea of legal traditions as normative information, which has spread into all legal systems in a large recursive process of appropriation and change, can be at least very stimulating for current attempts at a global legal history. The example of the School of Salamanca, which Glenn once described as Hispanic common law and which I will introduce in the first section of this chapter, shows the opportunities, but also the limits of his approach. The latter lie, in particular, in the fact that one can hardly analyse the processes of cultural translation observed without also taking into account praxeological aspects. It is precisely these conditions of the cultural translation of normative information that may have been of particular importance for the development of what Glenn envisioned as a ‘cosmopolitan law’.
This chapter provides an overview of the Gestapo and political policing in Government District Düsseldorf. The origins of ministerial independence are traced through laws, precedents, and power struggles that recast political police as a “special authority” removed from administrative oversight. The origins of preventative police justice outline how Himmler carved out a new mandate of prevention without encroaching on punishment through the courts under the cover of policy and law regulating arbitrary “protective custody” in concentration camps. An overview of politico-economic geography then underlines the importance attributed to suppressing dissent in this strategically vital district with historically low support for Nazism. Generational biography of regional personnel further details how this conditioned a shared institutional culture defined by the defeat of 1918 and communist uprisings in the Rhineland. Finally, tectonic shifts in case load identify inflection points in 1935 as the Gestapo pursued organized resistance into society at large, and in 1943 when case load plummeted as attention shifted to suppressing a slave revolt.
The policing of opinion transitioned from camps to courts during the first years of the Third Reich. The criminalization of criticism traced to the Reichstag Fire. Emergency decrees permitted arbitrary detention for suppressing a communist uprising and criminalized “disinformation.” Loose regulation quickly expanded enforcement from Marxist organizations and publicly supporting revolution to include private expressions of dissent by “chronic complainers and grumblers.” Mounting skepticism about this protracted state of emergency led to accusations of lawlessness from Hitler’s conservative partners by 1934. Policymakers responded by reining in protective custody and rewriting treason statutes to prosecute communist sedition through the courts. The disinformation decree was also rewritten to cover criticizing the regime. Stricter regulation brought the focus back to organized communist resistance, but the rewritten laws left the door open to policing private opinion in society at large. By 1935, the policing of criticism had settled into routine practices and formal processes under a newly expanded Law against Malicious Gossip governing the private conversations of Germans.
Studies in Australian history have lamentably neglected the military traditions of First Australians prior to European contact. This is due largely to a combination of academic and social bigotry, and loss of Indigenous knowledge after settlement. Thankfully, the situation is beginning to change, in no small part due to the growing literature surrounding the Frontier Wars of Australia. All aspects of Indigenous customs and norms are now beginning to receive a balanced analysis. Yet, very little has ever been written on the laws, customs and norms that regulated Indigenous Australian collective armed conflicts. This paper, co-written by a military legal practitioner and an ethno-historian, uses early accounts to reconstruct ten laws of war evidently recognized across much of pre-settlement Australia. The study is a preliminary one, aiming to stimulate further research and debate in this neglected field, which has only recently been explored in international relations.
This Article explores both theoretically and historically the core features of authoritarian adjudication. It attempts to offer an ideal type of what could mean a full assertion of authoritarianism in the context of adjudication. It aims to do so by first highlighting the value of insights that critical legal history can bring to the current discussion of populism. Second, it explores the paradigm of the exception that it aims to revise and ground in a historical analysis of the interwar period. Third, it considers the intellectual and practical lines of continuity between current reactions to the pandemic and the historical role of the military in modernity by drawing on the example of Romania. In a final part, it provides a reflection on the confusion between law, politics, and military concerns as a specific feature of modern authoritarianism.