Legal History

This volume covers the years 1483–1558. It first considers constitutional developments, and addresses the question of whether there was a rule of law under King Henry VIII. In a period of supposed despotism and enhanced parliamentary power, protection of liberty was increasing and habeas corpus was emerging. The volume considers the extent to which the law was affected by the intellectual changes of the Renaissance, and how far the English experience differed from that of the Continent. It includes a study of the myriad jurisdictions in Tudor England and their workings and examines important procedural changes in the central courts which represent a revolution in the way that cases were presented and decided. The legal profession, its education, its functions, and its literature are examined, and the impact of printing upon legal learning and the role of case-law in comparison with law-school doctrine are addressed. Criminal law was becoming more focused during this period as a result of doctrinal exposition in the inns of court and occasional reports of trials. After major conflicts with the Church, major adjustments were made to the benefit of the clergy, and the privilege of sanctuary was all but abolished. The volume examines the law of persons in detail, addressing the impact of the abolition of monastic status, the virtual disappearance of villeinage, developments in the law of corporations, and some remarkable statements about the equality of women. The history of private law during this period is dominated by real property and particularly the Statutes of Uses and Wills (designed to protect the king's feudal income against the consequences of trusts) which are given a new interpretation. Leaseholders and copyholders came to be treated as full landowners with rights assimilated to those of freeholders. The land law of the time was highly sophisticated, and becoming more so, but it was only during this period that the beginnings of a law of chattels became discernible. There were also significant changes in the law of contract and tort, not least in the development of a satisfactory remedy for recovering debts.

This volume, in the Oxford History of the Laws of England series, spans three centuries that encompassed the tumultuous years of the Norman conquest, and during which the common law as we know it today began to emerge. It treats all aspects of the early development of the English common law in a century, and features research into the original sources that bring the era to life, and provides an interpretative account, a subject analysis, and glimpses into medieval disputes. Starting with King Alfred (871–899), this book examines the particular contributions of the Anglo‐Saxon period to the development of English law, including the development of a powerful machinery of royal government, significant aspects of a long-lasting court structure, and important elements of law relating to theft and violence. Until the reign of King Stephen (1135–54), these Anglo‐Saxon contributions were maintained by the Norman rulers, whilst the Conquest of 1066 led to the development of key aspects of landholding that were to have a continuing effect on the emerging common law. The Angevin period saw the establishment of more routine royal administration of justice, closer links between central government and individuals in the localities, and growing bureaucratization. Finally, the later twelfth and earlier thirteenth century saw influential changes in legal expertise. The book concludes with the rebellion against King John in 1215 and the production of the Magna Carta.

This volume traces the reception and subsequent history of the canon law in England between 597 and 1649. It covers, amongst other topics, the Anglo-Saxon laws, both secular and spiritual; the establishment of consistory courts; and the fate of the canon law during and after the English reformation. Secondly, this volume addresses the subjects under ecclesiastical jurisdiction: civil procedure and the law of proof; monetary obligations and economic regulation; testamentary law and probate jurisdiction; tithes and spiritual dues; churches and the clergy; marriage and divorce; defamation; and crimes and criminal procedure. These subjects are examined using evidence from later medieval and early modern court records, and the volume seeks to place them within the context of formal canon law. The volume also places ecclesiastical jurisdiction within the context of English society and the English common law.

The Oxford History of the Laws of England: Volume XI 1820-1914 English Legal System is one of three volumes devoted to that period of relative peace across Europe running from the defeat of Napoleon to the terrible war against the two Kaisers. Volume XI is devoted mainly to: the sources of English law; the intellectual frameworks and institutions within which they were understood; the constitutional arrangements for the legislature; central and local executives; and the judicial system, this last providing the crucial core from which professional lawyers operated. Detailed footnoting to historical sources and literature occurs in the course of the narrative. Each volume has Tables of Cases and of Statutes covering the materials in that Volume. Volume XI also includes a Names Index and a Subject Index for the volume.

The Oxford History of the Laws of England: Volume XII 1820-1914 Private Law is one of three volumes devoted to that period of relative peace across Europe running from the defeat of Napoleon to the terrible war against the two Kaisers. Volume XII deals with the major elements of its inherited Private Law and the manner in which they were re-fitted for a more complex age, giving larger understandings of property, contract, commercial law, and tort. Detailed footnoting to historical sources and literature occurs in the course of the narrative. Each volume has tables of cases and of statutes covering the materials in that volume. Volume XII also includes a Names Index and a Subject Index for the volume.

The case of The Mayor, Aldermen and Burgesses of the Borough of Bradford v Pickles was the first to establish the principle that it is not unlawful for a property owner — in this case, Edward Pickles — to exercise his property rights maliciously and to the detriment of others or the public interest. Though controversial at the time, today it is often invisible and taken for granted. This book explores why the common law, in contrast to civil law systems, developed in this way. During the industrial revolution, the town of Bradford in England, and with it the demand for water for industrial and domestic purposes, grew rapidly. The first part of the book explores, through an analysis of correspondence, records, and newspaper reports, the development of the Bradford water supply and the genesis of the dispute that ultimately flared into litigation at the end of the 19th century. Several aspects of the case are of enduring doctrinal importance 100 years on. The controversial and potent common law principle of interpreting statutes so as to protect property rights wherever possible is examined in depth, as is the legal uncertainty of subterranean water rights in the 19th century. The book also explains the common lawyers' refusal to recognise a continental-style doctrine of abuse of rights and the courts' failure to develop a prima facie tort doctrine to curb maliciously inspired behaviour.

This book problematizes tolerance as a conceptually helpful or coherent concept for understanding the significance of the dhimmī rules, the Islamic legal doctrines that governed and regulated non-Muslim permanent residents in Islamic lands. In doing so, it suggests that the Islamic legal treatment of non-Muslims is symptomatic of the more general challenge of governing a diverse polity. Far from being constitutive of an Islamic ethos, the dhimmī rules are symptomatic of the messy business of ordering and regulating a diverse society. This understanding of the dhimmī rules allows us to view the dhimmī rules in the larger context of law and pluralism, and in that fashion, creates new spaces for analyzing Sharīʿa as one among many legal systems that, far from being unique, suffers similar challenges as other legal systems that also contend with the challenges of governing amidst diversity.

This book makes the under-explored argument that modern international law was built on the foundations of Roman law and Roman imperial practice. A pivotal figure in this enterprise was the Italian Protestant Alberico Gentili (1552–1608), the great Oxford Roman law scholar and advocate, whose books and legal opinions on law, war, empire, embassies, and maritime issues framed the emerging structure of inter-state relations in terms of legal rights and remedies drawn from Roman law, and built on Roman and scholastic theories of just war and imperial justice. The chapters examine the theory and practice of justice and law in Roman imperial wars and administration; Gentili's use of Roman materials; the influence on Gentili of Vitoria and Bodin and his impact on Grotius and Hobbes; and the ideas and influence of Gentili and other major thinkers from the 16th to the 18th centuries on issues, such as preventive self-defence, punishment, piracy, Europe's political and mercantile relations with the Ottoman Empire, commerce and trade, European and colonial wars and peace settlements, reason of state, justice, and the relations between natural law and observed practice in providing a normative and operational basis for international relations and what became international law. This book explores ways in which both the theory and the practice of international politics was framed in ways that built on these Roman private law and public law foundations, including concepts of rights. This history of ideas has continuing importance as European ideas of international law and empire have become global, partly accepted and partly contested elsewhere in the world.

Few legal institutions developed solely under the Roman Empire, but there is one which can provide a rare illustration of the emperors' involvement in building private law: although Roman law did not recognize a ‘trust’ in the same sense as it is used in common law today, it did develop a device — the fideicommissum — which achieved very similar ends. It has remained largely ignored, and yet it is an ideal case study in the evolution of law. As the most versatile institution of Roman inheritance law, it crucially affected the strategies of succession open to testators, and gives insights into a social history of testators' ambitions and legislative concerns. Over six centuries the trust expanded at the expense of established legal institutions, and with Justinian's reforms it finally became dominant. This book studies the history of the trust and its rise to prominence, with reference to the possible influence of the Roman ‘fideicommissum’.

This book discusses three of the most important developments in the law of contract in the 20th century. A short introduction explains the choice of topics and gives an account of the project (initiated in the 1960s and later abandoned) to codify this branch of the law. Chapter 1 deals with agreements to vary contracts and in particular with obstacles to the legal effectiveness of such agreements presented by the doctrine of consideration, under which something of value must be given for a promise to make it legally binding. It explains how the courts have mitigated these difficulties, especially by using the concepts of ‘estoppel’ and ‘practical benefit’. Chapter 2 starts with an account of the doctrine of privity, by which a contract can be enforced only by and against a party to it; and then considers attempts to erode that doctrine by the courts (e.g., by use of the concepts of trust, tort, vicarious immunity, and bailment on terms); by contractual draftsmanship (e.g., by so-called ‘Himalaya Clauses’); and by legislation such as the Contracts (Rights of Third Parties) Act 1999. Chapter 3 deals with the classification of contractual terms into conditions, warranties, intermediate terms and fundamental terms; the distinctions are discussed mainly in the context of the question whether the breach of a term by one party justifies rescission of the contract by the other.