The Republic of Bees

2019 ◽  
pp. 77-126
Author(s):  
Lawrence M. Friedman
Keyword(s):  
Eighteenth Century ◽  
Common Law ◽  
The United States ◽  
State Constitutions ◽  
System A ◽  
The Social ◽  
American Law ◽  
The Common ◽  
The Republic ◽  
Law Of Evidence

This chapter details changes in American law from the eighteenth century onward, covering federal and state constitutions, judges, organization of courts, and civil procedure, and the law of evidence. The colonies declared themselves independent in 1776. However, American law continued to borrow from English law. English doctrines that were needed and appropriate were welcome. Between 1776, and the middle of the nineteenth century, there developed a true republic of bees; their flowers were the social and economic institutions that grew up in the United States. American conditions and ideas were the lawmakers that made American law a distinctive system: a separate language within the common-law family.

Rediscovering Blackstone: wpływ Williama Blackstone’a na rozwój amerykańskiej nauki prawa w recepcji Alberta W. Alschulera

2017 ◽  
Vol 15 (2) ◽  
pp. 175-185
Author(s):  
Edyta Sokalska
Keyword(s):  
United States ◽  
18Th Century ◽  
Common Law ◽  
The United States ◽  
Law School ◽  
Large Measure ◽  
American Colonies ◽  
Late 18Th Century ◽  
American Law ◽  
The Common

The reception of common law in the United States was stimulated by a very popular and influential treatise Commentaries on the Laws of England by Sir William Blackstone, published in the late 18th century. The work of Blackstone strengthened the continued reception of the common law from the American colonies into the constituent states. Because of the large measure of sovereignty of the states, common law had not exactly developed in the same way in every state. Despite the fact that a single common law was originally exported from England to America, a great variety of factors had led to the development of different common law rules in different states. Albert W. Alschuler from University of Chicago Law School is one of the contemporary American professors of law. The part of his works can be assumed as academic historical-legal narrations, especially those concerning Blackstone: Rediscovering Blackstone and Sir William Blackstone and the Shaping of American Law. Alschuler argues that Blackstone’s Commentaries inspired the evolution of American and British law. He introduces not only the profile of William Blackstone, but also examines to which extent the concepts of Blackstone have become the basis for the development of the American legal thought.

Introduction

2021 ◽  
pp. 1-6
Author(s):  
Amanda L. Tyler
Keyword(s):  
United States ◽  
Great Britain ◽  
Common Law ◽  
The United States ◽  
Habeas Corpus ◽  
American Law ◽  
History Of ◽  
The Common ◽  
Anglo American

The Introduction provides an overview of the history of the writ of habeas corpus and an overview of the book, which tells the story of what is sometimes known as “the Great Writ” as it has unfolded in Anglo-American law. The primary jurisdictions explored are Great Britain and the United States, yet many aspects of this story will ring familiar to those in other countries with a robust habeas tradition. The book chronicles the longstanding role of the common law writ of habeas corpus as a vehicle for reviewing detentions for conformity with underlying law, as well as the profound influence of the English Habeas Corpus Act of 1679 on Anglo-American law. The Introduction highlights how the writ has at times failed to live up to its glorification by Blackstone and others, while noting that at other times it has proven invaluable to protection of liberty, including as a vehicle for freeing slaves and persons confined solely based on a King’s whim.

Mandatory Family Protection in the Common Law Tradition

2020 ◽  
pp. 707-739
Author(s):  
Kenneth G C Reid
Keyword(s):  
New Zealand ◽  
Common Law ◽  
Early Modern Period ◽  
The United States ◽  
Judicial Discretion ◽  
Real Property ◽  
Personal Property ◽  
The Common ◽  
The Republic ◽  
Close Family

In medieval English law, widows were entitled to dower and widowers to curtesy, both being life interests in the deceased’s real property. In addition, the personal property of the deceased was divided according to a tripartite system, with surviving spouse and children being entitled to one-third each and only the final third being available for disposal by will. The tripartite system was abandoned in the early modern period though it survives still in Scotland. But dower and curtesy remained and were exported to the British Empire. In the United States they had a rich future, developing into the fixed ‘elective share’ of the deceased’s estate which is available, in many states, for the surviving spouse. Elsewhere, dower and curtesy faded away during the nineteenth century giving rise to almost complete freedom of testation. This freedom was, however, short-lived. In 1900, New Zealand, having considered but rejected the tripartite system of fixed shares still used in Scotland, introduced a discretionary ‘family provision’ by which courts could make awards to close family members. The New Zealand model was soon copied throughout Australia, in the common law provinces of Canada, and, in 1938, in England and Wales itself. The chapter considers the reasons for the abandonment of freedom of testation, and examines the debate in New Zealand, England, and the Republic of Ireland as to whether family protection was best achieved by a system of fixed shares, as in Scotland, or by a system involving judicial discretion.

Sir John Davies on Custom and the Common Law

2020 ◽  
Vol 82 (3) ◽  
pp. 438-458
Author(s):  
Eugene Heath
Keyword(s):  
Eighteenth Century ◽  
Seventeenth Century ◽  
Political Theory ◽  
Common Law ◽  
Social Benefit ◽  
The Political ◽  
The Social ◽  
The Common

AbstractSeventeenth-century English common lawyer Sir John Davies sets forth, in his Irish Reports, a provocative and interesting argument on the nature of custom and its relation to the common law. This relatively unexplored argument shows how actions may emerge from conditions of liberty and slowly acquire qualities of social benefit and agreeability that are essential if the common law is to be identified with custom. Davies not only provides a coherent account of how custom might possess some reasonability, but he also seems to suggest that custom is unintended, thereby anticipating a theme found in eighteenth-century thinkers such as Mandeville, Hume, Ferguson, and Burke. In addition, Davies's account has important implications for political theory: the priority of the social over the political and a notion of political consent that arises via custom itself.

scholarly journals Oral Law in Litigation in South Africa: An Evidential Nightmare?

2017 ◽  
Vol 20 ◽  
pp. 1 ◽  
Author(s):  
Christa Rautenbach
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Customary Law ◽  
Court System ◽  
The Status ◽  
Customary Laws ◽  
The Common ◽  
The Republic ◽  
Law Of Evidence

In the past, customary law has been applied rather haphazardly in the courts. Its inherent adaptive flexibility and indeterminate nature created confusion in a court system ill-equipped to deal with litigation dealing with customary law issues. Understandably, customary law was treated in the same way as a common-law custom, which also originates in a community's acceptance of certain standards of behaviour. This meant that anyone averring a rule of customary law had to prove it, except where the rule was contained in a statute or precedent. The courts were not keen to engage in law-making and where the ascertainment of customary law proved to be difficult, they would merely apply the common law. In 1998, the Law of Evidence Amendment Act 45 of 1988, which allows the judiciary to take judicial notice of readily accessible customary law, made fundamental changes to this situation. The Act is still in operation, although it must now be interpreted in the light of the Constitution of the Republic of South Africa, 1996 (the Constitution). No direction on how this must be done can be found in the wording of the constitutional provisions dealing with the customary law. Besides instructing the courts to apply customary law when "applicable, subject to the Constitution and any legislation that specifically deals with customary law", the Constitution is silent on the way forward. Given the fact that most of the judiciary does not have any knowledge of the content of living customary law and the fact that there are fundamental differences between the evidentiary rules applied in the common and customary laws of South Africa, a few problems are bound to surface when litigating issues involving the customary law. They include: the status of customary law in the South African legal system; the applicability of customary law; and especially the determination of living customary law. The aim of this analysis is to determine if the existing evidentiary rules are appropriate to deal with these challenges in litigating matters involving customary law in the ordinary courts.

Foreign-Official Immunity under the Common Law

2020 ◽  
pp. 433-468
Author(s):  
John B. Bellinger ◽  
Stephen K. Wirth
Keyword(s):  
Foreign Relations ◽  
Common Law ◽  
The United States ◽  
Executive Branch ◽  
Deep Roots ◽  
Open Questions ◽  
American Law ◽  
The Common ◽  
Heads Of State ◽  
Foreign Ministers

This chapter looks at foreign-official immunity. Foreign-official immunity is divided into status-based immunity, which affords absolute immunity to sitting heads of state, heads of government, and foreign ministers, and conduct-based immunity, which affords immunity to sitting and former foreign officials for official conduct undertaken on behalf of the foreign sovereign. Each of these immunities has deep roots in customary international law and the common law. And for nearly two centuries, U.S. courts applied common-law principles of immunity, as articulated by the executive branch in court filings known as “suggestions of immunity,” to assess whether a foreign state or foreign official was immune from suit in the United States. The Fourth Restatement of Foreign Relations Law does not yet include a section on the immunity of foreign officials in U.S. courts. The American Law Institute may consider including this passionately debated topic in a future volume. In the meantime, the chapter provides a background on the state of the case law and executive-branch practice, identifies several challenging open questions, and outlines some principles that may be useful to the eventual drafters of the Fourth Restatement’s section on the topic.

Common Law Constitutionalism

2018 ◽  
Author(s):  
William E. Nelson
Keyword(s):  
Eighteenth Century ◽  
Seventeenth Century ◽  
Common Law ◽  
Legal Profession ◽  
Legal Institutions ◽  
Law System ◽  
The Common ◽  
Common Law System

This chapter shows how common law pleading, the use of common law vocabulary, and substantive common law rules lay at the foundation of every colony’s law by the middle of the eighteenth century. There is some explanation of how this common law system functioned in practice. The chapter then discusses why colonials looked upon the common law as a repository of liberty. It also discusses in detail the development of the legal profession individually in each of the thirteen colonies. Finally, the chapter ends with a discussion of the role of legislation. It shows that, although legislation had played an important role in the development of law and legal institutions in the seventeenth century, eighteenth-century Americans were suspicious of legislation, with the result that the output of pre-Revolutionary legislatures was minimal.

scholarly journals Interpreting change through legal culture: the case of the Irish exclusionary rule

Legal Studies ◽  
2021 ◽  
pp. 1-18
Author(s):  
Claire Hamilton
Keyword(s):  
Decision Making ◽  
Common Law ◽  
Legal Culture ◽  
Macro Level ◽  
Judicial Decision ◽  
Exclusionary Rule ◽  
Judicial Decision Making ◽  
The Common ◽  
Law Of Evidence

Abstract The changes to the Irish exclusionary rule introduced by the judgment in People (DPP) v JC mark an important watershed in the Irish law of evidence and Irish legal culture more generally. The case relaxed the exclusionary rule established in People (DPP) v Kenny, one of the strictest in the common law world, by creating an exception based on ‘inadvertence’. This paper examines the decision through the lens of legal culture, drawing in particular on Lawrence Friedman's distinction between ‘internal’ and ‘external’ legal culture to help understand the factors contributing to the decision. The paper argues that Friedman's concept and, in particular, the dialectic between internal and external legal culture, holds much utility at a micro as well as macro level, in interrogating the cultural logics at work in judicial decision-making.

Why Diamonds Really are a Girl's Best Friend: Another American Narrative

Daedalus ◽  
2012 ◽  
Vol 141 (1) ◽  
pp. 89-100
Author(s):  
Linda K. Kerber
Keyword(s):  
The United States ◽  
Cultural Practice ◽  
Legal Tradition ◽  
Domestic Relations ◽  
Recent Developments ◽  
American Law ◽  
History Of ◽  
The Republic ◽  
1960S And 1970S ◽  
The 1960S

The old law of domestic relations and the system known as coverture have shaped marriage practices in the United States and have limited women's membership in the constitutional community. This system of law predates the Revolution, but it lingers in U.S. legal tradition even today. After describing coverture and the old law of domestic relations, this essay considers how the received narrative of women's place in U.S. history often obscures the story of women's and men's efforts to overthrow this oppressive regime, and also the story of the continuing efforts of men and some women to stabilize and protect it. The essay also questions the paradoxes built into American law: for example, how do we reconcile the strictures of coverture with the founders' care in defining rights-holders as “persons” rather than “men”? Citing a number of court cases from the early days of the republic to the present, the essay describes the 1960s and 1970s shift in legal interpretation of women's rights and obligations. However, recent developments – in abortion laws, for example – invite inquiry as to how full the change is that we have accomplished. The history of coverture and the way it affects legal, political, and cultural practice today is another American narrative that needs to be better understood.

Law and Lawyers in the United States: The Common Law under Stress

1967 ◽  
Vol 80 (4) ◽  
pp. 916
Author(s):  
Lord Denning ◽  
Erwin N. Griswold
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
The Common
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