English Foundations of American Law, 1500s–1776

2018 ◽  
pp. 48-74
Author(s):  
John B. Nann ◽  
Morris L. Cohen
Keyword(s):  
Eighteenth Century ◽  
Common Law ◽  
Case Law ◽  
Case Finding ◽  
Colonial Period ◽  
Legal Issue ◽  
Good Case ◽  
American Law ◽  
English Law ◽  
The Law

This chapter describes current sources and techniques useful for finding seventeenth- and eighteenth-century laws of England and introduces some methods an attorney in England in the seventeenth and eighteenth centuries might have used. Before researchers can find the law, they must know what was considered to be the source of law in the period being investigated. Reporting, publishing, and finding cases has been important in English law for centuries. Parliamentary enactments during the colonial period also play an important part in the framework surrounding any particular legal issue. Meanwhile, English law is built on a foundation of common law, which is built on case law. As such, finding cases that relate to a particular topic is critical in research. A good case-finding option is a digest of cases; these have been written over the centuries, as have abridgments and treatises on particular areas of law.

Introduction

2016 ◽  
Author(s):  
Kurt X. Metzmeier
Keyword(s):  
American Revolution ◽  
Common Law ◽  
Political Environment ◽  
American Law ◽  
History Of ◽  
Background History ◽  
English Law ◽  
The Law ◽  
State Subsidies ◽  
Law Reports

The introduction provides the background history of American law reporting. After the American Revolution, the early law reporters helped create a new common law inspired by the law of England but fully grounded in the printed decisions of American judges. English law reports, whose reporters eventually achieved the same authority as their reports, were the model. It took time for the first state opinions to appear in print because publication was not commercially feasible. The first law reporters collected the opinions of the court, selected the best, and financed their printing; later they received state subsidies. The early Kentucky law reports were extensions of the personalities of their creators, an individualistic group of rising young lawyers, future and former judges, aspiring politicians, and enterprising journalists. The history of Kentucky courts and the state’s political environment are also surveyed.

scholarly journals Unlawful and Dangerous

2017 ◽  
Vol 81 (2) ◽  
pp. 143-160
Author(s):  
Tony Storey
Keyword(s):  
Common Law ◽  
Case Law ◽  
Criminal Code ◽  
Essential Elements ◽  
Canadian Criminal Code ◽  
Similarities And Differences ◽  
English Law ◽  
The Law

The crime of unlawful act manslaughter (otherwise known as constructive manslaughter) exists in English and Australian common law. It is also an offence contrary to the Canadian Criminal Code. In all three jurisdictions the offence shares the same essential elements, including the requirements that the accused commit an act which is both unlawful and dangerous. This article will explore the case law on unlawful act manslaughter in Australia, Canada and England, focusing on the elements of an unlawful act and dangerousness, in order to identify similarities and differences in the application of the law in the three jurisdictions. Where differences are found, consideration will be given to the question whether English law should be reformulated.

scholarly journals CODIFICATION, CONSOLIDATION, RESTATEMENT? HOW BEST TO SYSTEMISE THE MODERN LAW OF TORT

2021 ◽  
Vol 70 (2) ◽  
pp. 271-305
Author(s):  
Paula Giliker
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Legal Scholarship ◽  
Legal Rules ◽  
The Law ◽  
Codal Provisions ◽  
Code Civil

AbstractThe law of tort (or extra or non-contractual liability) has been criticised for being imprecise and lacking coherence. Legal systems have sought to systemise its rules in a number of ways. While civil law systems generally place tort law in a civil code, common law systems have favoured case-law development supported by limited statutory intervention consolidating existing legal rules. In both systems, case law plays a significant role in maintaining the flexibility and adaptability of the law. This article will examine, comparatively, different means of systemising the law of tort, contrasting civil law codification (taking the example of recent French proposals to update the tort provisions of the Code civil) with common law statutory consolidation and case-law intervention (using examples taken from English and Australian law). In examining the degree to which these formal means of systemisation are capable of improving the accessibility, intelligibility, clarity and predictability of the law of tort, it will also address the role played by informal sources, be they ambitious restatements of law or other means. It will be argued that given the nature of tort law, at best, any form of systemisation (be it formal or informal) can only seek to minimise any lack of precision and coherence. However, as this comparative study shows, further steps are needed, both in updating outdated codal provisions and rethinking the type of legal scholarship that might best assist the courts.

Schemes of Arrangement: Law and Practice

2012 ◽  
Author(s):  
Geoff O’Dea ◽  
Julian Long ◽  
Alexandra Smyth
Keyword(s):  
International Law ◽  
Case Law ◽  
Private International Law ◽  
Sources Of Information ◽  
Foreign Companies ◽  
Pros And Cons ◽  
English Law ◽  
The Law ◽  
The Uk

This new guide to schemes of arrangement draws together all of the elements of the law and practice concerning both creditor and member schemes. Member schemes of arrangement have become the preferred method of implementing takeovers in the UK. Creditor schemes of arrangement are increasingly used in restructuring matters and the trend in their usage in foreign companies is likely to continue as many credit documents across Europe are arranged and underwritten in London under English law. The book considers the effect given to an English scheme in foreign jurisdictions, and other Private International Law issues. A major issue for those considering a scheme for creditors is whether a scheme or CVA (Company Voluntary Arrangement) is more appropriate and this book assists the reader by including an analysis of the pros and cons of schemes and CVAs. There are very few sources of information on schemes of arrangement and the area takes much of its substance from case law. This book, addressing the law and practical issues faced by practitioners on a day-to-day basis, is a first in the field.

The Use of Vattel in the American Law of Nations

2012 ◽  
Vol 106 (3) ◽  
pp. 547-571 ◽  
Author(s):  
Brian Richardson
Keyword(s):  
Eighteenth Century ◽  
International Law ◽  
International Peace ◽  
Founding Fathers ◽  
Law Of Nations ◽  
American Law ◽  
History Of ◽  
The Law ◽  
History Of International Law

Although careful scholarly treatment of the history of international law is now thriving, within U.S. courts that history now begins with one eighteenth-century treatise published in Neuchâtel, Switzerland, in 1758 and published in translation for modern readers under the aegis of the Carnegie Endowment for International Peace in 1916. This treatise is Emer de Vattel’s Droit des gens ou principes de la loi naturelle, appliqués à la conduite et aux affaires des nations et des souverains. My aim in this article is to appraise the elevation of Vattel to vaunted originalist heights in U.S. law. The claim that Vattel’s theory of the law of nations completely represents how the Founding Fathers (Founders) understood the law of nations should be rejected as a matter of history.

Part 2 National and Regional Reports, Part 2.3 Australasia: Coordinated by Brooke Marshall, 42 New Zealand: New Zealand Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Hook Maria
Keyword(s):  
New Zealand ◽  
International Law ◽  
General Position ◽  
Common Law ◽  
Case Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Legislative Reform ◽  
The Hague ◽  
The Law

This chapter examines the choice of law rules that determine the law applicable to international contracts in New Zealand, comparing them to the Hague Principles. Private international law in New Zealand is still largely a common law subject, and the choice of law rules on international commercial contracts are no exception. The general position, which has been inherited from English common law, is that parties may choose the law applicable to their contract, and that the law with the closest and most real connection applies in the absence of choice. There are currently no plans in New Zealand for legislative reform, so the task of interpreting and developing the choice of law rules continues to fall to the courts. When performing this task, New Zealand courts have traditionally turned to English case law for assistance. But they may be willing, in future, to widen their scope of inquiry, given that the English rules have long since been Europeanized. It is conceivable, in this context, that the Hague Principles may be treated as a source of persuasive authority, provided they are consistent with the general principles or policies underlying the New Zealand rules.

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.

Sovereignty and Common Law Judicial Office in Taylor's Case (1675)

2019 ◽  
Vol 37 (2) ◽  
pp. 397-429 ◽  
Author(s):  
David Kearns
Keyword(s):  
Church Of England ◽  
Common Law ◽  
Ecclesiastical Law ◽  
Chief Justice ◽  
Spiritual Nature ◽  
The Common ◽  
English Law ◽  
The Law ◽  
The Church ◽  
Law Making

This essay argues that the 1675 conviction of John Taylor by the Court of King's Bench for slandering God reveals Chief Justice Matthew Hale implementing a model of conjoint law-making between courts, Parliament, and crown that gave pre-eminent power to the common lawyers, and none to the Church of England. In doing so, it counters the prevailing literature on Restoration English law, which has treated the law as hierarchical, with the common lawyers subordinate to the sovereign. Rather than following statute or ecclesiastical law, which emphasised the spiritual nature of crimes like Taylor's, Hale located Taylor's offence in the exclusively temporal common law jurisdiction of defamation, which existed largely outside of monarchical purview. Hale's judgment reflected his rhetoric of judicial office outside the courtroom, where he argued the judiciary worked alongside King and Parliament in making law, but were not subservient to these institutions, for common lawyers relied on sources of law beyond sovereign-made statute. The language of sovereignty as hierarchical was thus a factional attack on an independent common law, an attempt to subordinate the common lawyers to the crown that was resisted by the lawyers like Hale in his rhetoric and exercise of office, and should not ground accounts of the Restoration regime.

Fundamental Conceptions of International Law in the Jurisprudence of the Permanent Court of International Justice

1936 ◽  
Vol 30 (3) ◽  
pp. 414-438 ◽  
Author(s):  
H. Arthur Steiner
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Current Practice ◽  
Common Law ◽  
International Justice ◽  
Large Measure ◽  
American Law ◽  
The Common ◽  
The Law ◽  
Anglo American

Even in the most highly formalized systems of jurisprudence the rules and practices of the law cannot be entirely separated from the fundamental conceptions of law underlying them. The legal systems of France, The Netherlands and Germany have not been formalized to so great an extent that there is neither occasion nor opportunity for the application of the law to be conditioned by concepts derived from juridical theory. Duguit and Geny, Krabbe, and Kohler and Stammler, in their various works, have made this quite clear. In Anglo-American law the fictions so abundantly found are often no more than concrete formulations of abstract fundamental concepts which judges have thought to be valid and consistent with policy and which they could not conveniently introduce into the law in any other way. That fundamental conceptions of the law may affect its development more than their logical consistency warrants has been amply illustrated in the common law, equity, and American constitutional law. What is true of well-developed systems of jurisprudence is no less true of international law. Fundamental conceptions have probably had a greater influence here, since theologic and scholastic philosophies explain many of the rules of modern practice, and the rules of current practice owe their very existence, in large measure, to the reconciliaation of the philosophical concepts of the State, sovereignty and independence with the conception of a community of nations and a rule of law.

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