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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 20th century. The book begins by looking at the nature of British imperialism and the position of non-Christian peoples at large in the 17th and 18th centuries. It then focuses on North America and Australasia from their early national periods in the 19th 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. The author examines the political resurgence of aboriginal peoples in the last quarter of the 20th 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.

Aboriginal title was one of the most remarkable and controversial legal developments in the common law world of the late-twentieth century. The common law doctrine gave sudden substance to the tribes' claims to justiciable property rights over their traditional lands, catapulting these up the national agenda and jolting them out of a seemingly embedded culture of governmental inattention. In a series of breakthrough cases national courts adopted the argument developed first in western Canada, and then New Zealand and Australia by a handful of influential scholars. Almost overnight these cases changed the political leverage of indigenous peoples. By the beginning of the millennium the doctrine had spread to Malaysia, Belize, and southern Africa, and had a profound impact upon the rapid development of international law of indigenous peoples' rights. This book is a history of this doctrine and the explosion of intellectual activity arising from this inrush of legalism into the tribes' relations with the Anglo settler state. The author of this book was one of the key scholars involved from the doctrine's appearance in the early 1980s as an exhortation to the courts, and a figure who has both witnessed and contributed to its acceptance and subsequent pattern of development. The book looks critically at the early conceptualisation of the doctrine, its doctrinal elaboration and evisceration in Canada and Australia — the busiest jurisdictions — through a proprietary paradigm located primarily (and constrictively) inside adjudicative processes. This book also considers the issues of inter-disciplinary thought and practice (for anthropologists and historians especially) arising from national legal systems' recognition of aboriginal land rights, including the emergent and associated themes of self-determination that surfaced more overtly during the 1990s and after. The doctrine made modern legal history, and it is still making it.

The modern adversarial criminal trial emerged from the punitive and procedural upheaval in the criminal law of the first half of the nineteenth century. The campaign against capital punishment, which marked the century's early decades, stimulated procedural reform, including the enactment in 1836 of the Prisoners' Counsel Act. The 1836 Act enabled defence counsel for the first time to address the jury in felony trials. It generated a unique debate in Parliament, the press and the legal professions on the merits and dangers of advocacy. This book examines the debate and the practical implications of procedural reform for the conduct of criminal trials. The topics discussed include the increasing sophistication of prosecution and defence advocacy, the beginnings of modern professional ethics and the conscious rationalisation of adversary procedure as the best means to discover the truth. The book analyses the practice of advocacy and identifies its significance for the administration of justice. It includes case studies of four major criminal trials that demonstrate the interrelationships between advocacy and procedure in the making of the adversarial criminal trial.

This book is an exploration of the ways in which Americans have perceived, applied, advanced, and frustrated international law. It demonstrates the varieties and continuities of America's approaches to international law. The book begins with the important role the law of nations played for founders like Jefferson and Madison in framing the Declaration of Independence and the Constitution. It then discusses the intellectual contributions to international law made by leaders in the New Republic — Kent and Wheaton — and the place of international law in the 19th century judgments of Marshall, Story, and Taney. The book goes on to examine the contributions of American utopians — Dodge, Worcester, Ladd, Burritt, and Carnegie — to the establishment of the League of Nations, the World Court, the International Law Association, and the American Society of International Law. It finishes with an analysis of the wavering support to international law given by Woodrow Wilson and the emergence of a new American isolationism following the disappointment of World War I.

Central to the identity of the American legal profession are its systems of self-regulation. Throughout history, the legal profession has tried to hold tight to its traditional values and structure during times of self-identified crisis. This book analyzes the efforts of the legal profession to protect and maintain the status quo even as the world around it changed. The book argues that with striking consistency, the profession has resisted the societal change happening around it, and sought to ban or discourage new models of legal representation created by such change. In response to every crisis, lawyers asked: “How can we stay even more ‘the same’ than we already are?” The legal profession has been an unwilling, capitulating entity to any transformation wrought by the overwhelming tide of change. Any proactive changes were mostly levied against the newest members of the legal community in order to preserve the status quo, so that when the legal profession did have to change, it did so only because the changes in society, culture, technology, economics, and globalization could not be denied. This book aims to demonstrate how the profession has held to its anachronistic ways at key crisis points in US history: Watergate, communist infiltration, arrival of waves of immigrants, the litigation explosion, the civility crisis, and the current economic crisis that blends with dramatic changes in technology and communications and globalization. Ultimately, this book urges the profession to look outward and forward to find in society and culture the causes and connections with these periodic crises. Doing so would allow the profession to grow with the society, solve problems with, rather than against, the flow of society, and be more attuned to the very society the profession claims to serve.

Antonin Scalia and American Constitutionalism is a critical study of Justice Antonin Scalia’s jurisprudence, his work on the U.S. Supreme Court, and his significance for an understanding of American constitutionalism. After tracing Scalia’s emergence as a hero of the political right and his opposition to many of the decisions of the Warren Court, this book examines his general jurisprudential theory of originalism and textualism, arguing that he failed to produce either the objective method he claimed or the “correct” constitutional results he promised. Focusing on his judicial performance over his thirty years on the Court, the book examines his opinions on virtually all of the constitutional issues he addressed, from fundamentals of structure to most major constitutional provisions. The book argues that Scalia applied his jurisprudential theories in inconsistent ways and often ignored, twisted, or abandoned the interpretive methods he proclaimed, in most cases reaching results that were consistent with “conservative” politics and the ideology of the post-Reagan Republican Party. Most broadly, it argues that Scalia’s jurisprudence and career are particularly significant because they exemplify—contrary to his own persistent claims—three paramount characteristics of American constitutionalism: the inherent inadequacy of “originalism” and other formal interpretive methodologies to produce “correct” answers to controverted constitutional questions; the relationship—particularly close in Scalia’s case—between constitutional interpretations on one hand and substantive personal and political goals on the other; and the truly and unavoidably “living” nature of American constitutionalism itself. As a historical matter, the book concludes, Scalia stands as a towering figure of irony because his judicial career disproved the central claims of his own jurisprudence.

The beginning of Anglo–Hindu jurisprudence was occasioned by decisive developments in the cultural, intellectual, and legal history of India. This book deals with the appropriation of the Dharmaśāstras — a powerful written tradition — and its codification, in the construction of Hindu law. It explores the significant connections between this process of formalization and the consolidation of the empire in Bengal. It analyses the shifting administrative and political needs of the colonial regime as well as the perceptions and attitudes of the officials in this process of codification. Through a careful study of the compilations, Vivādarṇavasetu and Vivādabhangārṇava alongside their late eighteenth-century colonial translations, the book brings out the ways in which ancient textual traditions — the prescriptive, normative, and moralistic rules of the Dharmaśāstras — were metamorphosed into legal rules to be directly administered in courts. Investigating the intricate and dynamic links between power and knowledge in the evolution of institutions under colonial rule, this book underlines innovative ways of looking at the legal history of colonial India.

This book contains selected cases, statutes, and a few other texts, relating to the history of English private law between 1194 and 1750. (Cases after 1750 are mostly available in the English Reports.) It may be used as a companion to the textbooks written by the compilers, but the purpose is different from that of a textbook. The original materials are here allowed to speak for themselves, without commentary. Most of them are reports of cases, which show how the common law evolved through argument. The losing arguments help to explain those which prevailed, and it is often instructive to know what was not argued. Most of the reports were written in law French, but they are here given in English translation, corrected or augmented from manuscripts, together with notes from the enrolled Latin records. Much of this material is not available in English translation elsewhere. The second impression (2019) contains corrections and additions.

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 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.

This book analyzes the British Government's radical change in policy during the late 1950s on the use of bills of rights in colonial territories nearing independence. More broadly it explores the political dimensions of securing the protection of human rights at independence and the peaceful transfer of power through constitutional means. This book fills a major gap in the literature on British and Commonwealth law, history, and politics by documenting how bills of rights became commonplace in Britain' s former overseas territories. It provides a detailed empirical account of the origins of the bills of rights in Britain's former colonial territories in Africa, the West Indies, and South East Asia as well as in the Atlantic and Pacific Oceans. It sheds light on the development of legal systems at the point of gaining independence and raises questions about the colonial influence on the British legal establishment's change in attitude towards bills of rights in the late 20th century. It presents an alternative perspective on the end of Empire by focusing upon one aspect of constitutional decolonization and the importance of the local legal culture in determining each dependency's constitutional settlement and provides a series of empirical case studies on the incorporation of human rights instruments into domestic constitutions when negotiated between a state and its dependencies. More generally, this book highlights Britain's human rights legacy to its former Empire, and traces the genesis of the bills of rights of over thirty nations from the Commonwealth.

While common law actions for breach of promise of marriage originated in the mid-seventeenth century, it was not until the ‘long nineteenth century’ that they saw their rise to prominence and their subsequent fall from favour. This monograph ties the story of the action's rise and fall between 1800 and 1940 to changes in the prevalent conception of woman, her ideal role in society, sexual relations, and the family, arguing that the idiosyncratic nineteenth-century breach-of-promise suit (a luxuriant blend of both contract and tort) and Victorian notions of ideal femininity were uneasily and fatally, but nonetheless inextricably, entwined. It classifies the ninteenth-century breach-of-promise action as a ‘codification’ of the contemporaneous ideal of true womanhood and explores the longer-term implications of this infusion of mythologized femininity for the law, in particular for the position of plaintiffs. Surveying three consecutive time periods – the early nineteenth century, the high Victorian, and the post-Victorian periods – and adopting an interdisciplinary approach that combines the perspectives of legal history, social history, and literary analysis, it argues that the feminizing process, by shaping a cause of action in accordance with an ideal at odds with the very notion of women going to law, imported a fatal structural inconsistency that at first remained obscured, but ultimately vulgarized and undid the cause of action. Alongside more than two hundred and fifty real-life breach-of-promise cases, the book examines literary and cinematic renditions of the breach-of-promise theme, by artists ranging from Charles Dickens to P. G. Wodehouse, in order to expose the subtle yet unmistakable ways in which what happened (and what changed) in the breach-of-promise courtroom influenced the changing representation of the breach-of-promise plaintiff in nineteenth- and early twentieth-century literature and film.

Muslim law is an integral part of South Asian legal system; and case law plays a major role in its interpretation, application and development. The book provides the readers, by a judicious selection of principal judicial decisions, with an adequate number of fact situations and gives them a clear idea of the basic principles and rules of this law and their application by the courts. In selecting cases due weight has been given to colonial India, India, Pakistan and Bangladesh. Part I of the book gives the gist of sixty-one cases under three heads: issues of law, case summary and court decisions, and comments; Part II reproduces full texts of thirty-five of them. Part I, which is a novelty in case books and constitutes the very essence of the book, is designed to explain cases to readers in a simple and intelligible manner, encourage them to go to the original reports and make study of law interesting and meaningful. Part II is meant to give them easy access to a representative collection of cases. The cases cover the following major areas: sources and interpretation of law, institution of marriage, marriage contracts, polygamous marriages, dower, restitution of conjugal rights, talaq, khula and irreconcilable break-down of marriage, Dissolution of Muslim Marriages Act 1939, Muslim Family Laws Ordinance 1961, Muslim Women Act 1986, legitimacy, guardianship, maintenance of wives and divorced wives etc. Primarily intended as a core textbook for use in law schools of India, Pakistan and Bangladesh, (also UK and US), it will also be highly useful to members of legal profession, students and researchers of comparative law, social and gender studies and general readers.

This book recounts the history of the nation's first civil rights act, from its passage in 1866 through its interpretation and reenactment in developments that reach the present day. The Civil Rights Act of 1866 created civil rights as we now know them, and it exercised a deep and continuing influence over the constitutional and statutory protection of these rights. Almost all of the controversy over civil rights, from the scope of federal prohibitions against private discrimination to the remedies available to victims of civil rights violations, finds its roots in debates over the act. These issues are important in themselves, and all the more so because they exemplify the complementary roles of the legislature and the judiciary in giving meaning to the constitutional ideal of equality in public life. This book offers an appreciation of the Civil Rights Act of 1866, hitherto regarded in only selective and partial perspective, and provides a comprehensive view of the act over nearly a century and a half and a detailed account of its leading role in making civil rights a reality.

This book looks at legal and fiscal framework for civil society organizations (CSOs) in China from earliest times to the present day. It traces the ways in which laws and regulations have shaped civil society over the 5,000 years of China's history, and looks at ways in which social and economic history have affected the legal changes that have occurred over the millennia. It provides a historical and current analysis of the legal framework for civil society and citizen participation in China, focusing not merely on legal analysis, but also on the ways in which the legal framework influenced and was influenced in turn by social and economic developments. The principal emphasis is on how the Chinese people—as opposed to high-ranking officials or cadres—have been able to play a part in the social and economic development of China through the associations in which they participate. This book sums up this rather complex journey through Chinese legal, social, and political history by assessing the ways in which social, economic, and legal system reforms in today's China are bound to have an impact on civil society. The changes that have occurred in China's civil society since the late 1980s and, most especially, since the late 1990s, are nothing short of remarkable.

This book examines the origins of the controversial practice of plea bargaining, a procedure that appears to reward the guilty. Contrary to popular perception of plea bargaining as an innovation or corruption of the post-World War II years, it shows the practice to have emerged early in the American Republic. The book argues that plea bargaining arose in the 1830s as part of a process of political stabilization, and as an effort to legitimate the democratic institutions of self-rule that were crucial to Whig efforts to reconsolidate the political power of Boston's social and economic elite. At this time, local political institutions were spare and fragmentary, and the courts, the author argues, stepped forward as agents of the state to promote social order. Plea bargaining drew conflicts into the courts while maintaining elite discretion over sentencing policy. The book argues that plea bargaining should be seen as part of a larger repertoire of techniques in the Anglo-American legal tradition through which law might be used as a vehicle of rule. In this context, plea bargaining provided a unique match between the needs of the elites to maximize flexibility in criminal sanction and an emerging liberal ideology.

When the British Empire enacted copyright law for its colonies, it called it colonial copyright, or imperial copyright, but it had only one kind of interest in mind: its own. This book deconstructs the imperial policy regarding copyright, by reversing the order and asking how British copyright was received in the colonies. Colonial copyright is told here from the point of view of the colonized, rather than the colonizer’s standpoint. The book suggests a general model of Colonial Copyright, understood as the intersection of legal transplants, colonial law, and the particular features of copyright, especially authorship. Mandate Palestine (1917–48) is the leading case study. The book tells a yet-untold history of copyright law that was the basis of Israeli law, and still is the law in the Palestinian Authority. The discussion is a critical cultural legal history, told from a postcolonial stance. It queries the British motivation in enacting copyright law, traces their first, indifferent reaction, and continues with the gradual absorption into the local legal and cultural systems. The story unfolded explores the emergence of local literary activities, the introduction of telegraph and radio, and the business models of the content industries. We shall meet many pioneers, in literature, music, film, and the law. The discussion is acutely aware of the role of identity politics, and of the meeting point of the foreign, colonial law with the local norms and cultures. It suggests that we view colonial copyright as an early case of globalization.

This volume begins where volumes 2 and 3 ended. The main theme of the four-volume project is that the law of America’s thirteen colonies differed profoundly when they first were founded, but had developed into a common American law by the time of the Revolution. This fourth volume focuses on what was common to the law of Britain’s thirteen North American colonies in the mid-eighteenth century, although it also takes important differences into account. The first five chapters examine procedural and substantive law in colonies and conclude that, except in North Carolina and northern New York, the legal system functioned effectively in the interests both of Great Britain and of colonial localities. The next three chapters examine changes in law and the constitution beginning with the Zenger case in 1735—changes that ultimately culminated in independence. These chapters show how lawyers became leading figures in what gradually became a revolutionary movement. It also shows how lawyers used legal and constitutional ideology in the interests, sometimes of an economic character, of their clients. The book thereby engages prior scholarship, especially that of Bernard Bailyn and John Phillip Reid, to show how ideas and constitutional values possessed independent causal significance in leading up to the Revolution but also served to protect institutional structures and socioeconomic interests that likewise possessed causal significance.

This volume begins where volume 1 ended and traces legal development in Maryland, Virginia, Massachusetts, and the smaller New England colonies from 1660 to the mid-eighteenth century. A main claim of the volume is that the Glorious Revolution changed England’s policy toward its colonies. Prior to the revolution, Charles II and James II sought to centralize power in the English empire; the means they chose to achieve centralization was to continue governing Maryland and Virginia through the common law and to impose the common law on Massachusetts and the rest of New England. After the Glorious Revolution, William III continued the policy of imposing the common law. But William III and his Hanoverian successors were less concerned than their Stuart predecessors had been with centralizing power; their aim was to ensure the hegemony of Protestantism in each colony as they assembled a Protestant coalition to defeat the efforts of the Catholic Louis XIV to establish what William III called “universal monarchy.” Thus, although every one of Britain’s North American colonies received the common law by the mid-eighteenth century, the reception assumed different forms in different colonies. Local interests retained significant power everywhere and used that power to preserve divergent, customary patterns of law that had arisen in the seventeenth century.

This book focuses on the judicial handling of constitutional tort claims arising from the war on terror, while examining the response of the federal courts to claims seeking redress for victims of human rights abuses committed during the Bush administration. To date, in over fifteen years of litigation not a single federal appellate court has confirmed an award of damages to victims of torture and cruel, inhuman, and degrading treatment. The silence of the federal courts leaves victims without redress and the constitutional limits on government accountability undefined. Litigation to secure an award of damages for constitutional violations committed by federal officials rests on the landmark 1971 Supreme Court decision in Bivens. But the assertion of tort-based claims against federal officers traces its origins to eighteenth century English common law. The book summarizes the history of common-law accountability, traces the rise of Bivens claims, surveys the post-Bivens history of constitutional tort litigation, and focuses on Bivens litigation arising out of the war on terror. After demonstrating that Bivens litigation has wholly failed in the war-on-terror context, the book considers and rejects the arguments for judicial deference that some have put forward to explain and justify this failure. The book argues that the Supreme Court must fundamentally rethink its Bivens jurisprudence. Rather than treating the national security context as a special reason for deferring to the executive, the modern Court should take a page from the nineteenth century, presume the viability of constitutional tort claims, and proceed to the merits.