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Journal articles on the topic 'Common law – History'

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Published: 4 June 2021
Last updated: 9 February 2022

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1

Goodrich, Peter. "Eating law: Commons, common land, common law." Journal of Legal History 12, no. 3 (December 1991): 246–67. http://dx.doi.org/10.1080/01440369108531041.

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2

Meyler, Bernadette. "Common Law Confrontations." Law and History Review 37, no. 03 (August 2019): 763–86. http://dx.doi.org/10.1017/s0738248019000385.

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This symposium essay contends that the image of the common law drawn by the Supreme Court in the Confrontation Clause context is both distorted and incomplete. In particular, the Court and scholars defending originalist positions rely almost entirely on English sources in their reconstruction of the common law basis for the Confrontation Clause, thereby neglecting the diversity of American common laws from the time of the Founding, a diversity that has already been unearthed by a number of legal historians. By drawing on hitherto untapped sources to furnish a bottom-up reconstruction of how testimony was treated in local criminal courts within mid- to late-eighteenth-century New Jersey, this essay demonstrates that, in at least some jurisdictions, the originalist vision of common law did not apply. The common law cannot, therefore, furnish a univocal answer to questions about the original meaning of the Confrontation Clause.
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3

Weiner, Mark S. "A history of the common law." Rethinking History 16, no. 1 (March 2012): 3–15. http://dx.doi.org/10.1080/13642529.2012.647801.

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4

Rodgers, C. P. "Humanism, history and the common law." Journal of Legal History 6, no. 2 (September 1985): 129–56. http://dx.doi.org/10.1080/01440368508530834.

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5

Ibbetson, D. J. "Natural Law and Common Law." Edinburgh Law Review 5, no. 1 (January 2001): 4–20. http://dx.doi.org/10.3366/elr.2001.5.1.4.

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If you scan through the law reports ofthe last century or so, you will come across a sprinkling of references to Natural Law, commonly in conjunction with some such phrase as “manifest nonsense”.1 Introductory books dealing with the sources of law hardly place it in the forefront of their treatment, to say the least; and anyone writing a practitioners' manual on some practically useful area of law who began with a chapter on Natural Law would be thought to have taken leave of his senses. Go back two or three hundred years or so and the picture looks very different. References to the law of nature abound in the reports of the seventeenth and eighteenth centuries; institutional writers dealing with the Common Law will regularly list Natural Law as one of its principal sources, and when Stewart Kyd wrote the first English book on what we would now call company law2 the obvious starting pointfor his first chapter was the work of the Natural Lawyers of the previous century. England, like everywhere else in Europe, had been caught up in a fervour of Natural Law thinking. Legal historians, of course, are well aware of this, but commonly portray it in their books as part of the background against which the Common Law was worked out, rather than as an integral part ofthe story of English law's development.3 This downplaying of the practical significance of Natural Law represents something of a lost opportunity, not merely because it can give a frame of reference within which some sense can be made ofthe reorientation of English law in the eighteenth century, but also because it provides an important point ofcontact between the all-too-insular history ofEnglish law and the apparently more homogeneous legal history of the rest of Europe.
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6

Davis, Samuel M., and A. W. Brian Simpson. "Cannibalism and the Common Law." American Journal of Legal History 30, no. 3 (July 1986): 278. http://dx.doi.org/10.2307/845734.

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7

Bryson, W. Hamilton. "English common law in Virginia∗." Journal of Legal History 6, no. 3 (December 1985): 249–56. http://dx.doi.org/10.1080/01440368508530845.

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8

Neville, C. J. "Common Knowledge of the Common Law in Later Medieval England." Canadian Journal of History 29, no. 3 (December 1994): 461–78. http://dx.doi.org/10.3138/cjh.29.3.461.

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9

Young-Hee KIM. "Contractual Liability and Lawsuitsin the Common Law History." Korean Lawyers Association Journal 64, no. 11 (November 2015): 337–92. http://dx.doi.org/10.17007/klaj.2015.64.11.006.

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10

Young-Hee KIM. "Contractual Liability and Lawsuitsin the Common Law History." Korean Lawyers Association Journal 64, no. 11 (November 2015): 337–92. http://dx.doi.org/10.17007/klaj.2015.64.11.006006.

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11

Goodrich, Peter. "Poor Illiterate Reason: History, Nationalism and Common Law." Social & Legal Studies 1, no. 1 (March 1992): 7–28. http://dx.doi.org/10.1177/096466399200100102.

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12

Witting, Christian. "A History of Water Rights at Common Law." Modern Law Review 68, no. 3 (May 2005): 508–10. http://dx.doi.org/10.1111/j.1468-2230.2005.549_5.x.

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13

Fox-Decent, Evan. "Democratizing Common Law Constitutionalism." McGill Law Journal 55, no. 3 (February 10, 2011): 511–35. http://dx.doi.org/10.7202/1000622ar.

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Common law constitutionalism is the theory that legal principles such as fairness and equality reside within the common law, are constitutive of legality, and inform (or should inform) statutory interpretation on judicial review. This article looks to Justice Rand’s judgment in Roncarelli v. Duplessis to develop a democratic and relational conception of common law constitutionalism. By “democratic” the author means a version of the theory that governs judicial review but which is available to frontline decision makers independently of the history and contemporary practice of review. By “relational” the author means a theory that presupposes a trust-like and legally significant relationship between public authorities and the persons subject to their power. Under the democratic and relational theory, the legality of administrative action is assessed in light of legal principles constitutive of the trust-like relationship and without reference to the separation of powers. These principles flow from the trust-like nature of the relationship and the implications of working out how public authorities can hold discretionary power over individuals without subjecting them to domination or instrumentalization.
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14

Smedley-Weill, Annette. "Common(s) law et souveraineté." Cahiers d Économie Politique 40-41, no. 2 (2001): 193. http://dx.doi.org/10.3917/cep.040.0193.

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15

Palmer, Robert C. "The Federal Common Law of Crime." Law and History Review 4, no. 2 (1986): 267–323. http://dx.doi.org/10.2307/743829.

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The United States Constitution established a federal system, not a national government. States continued necessarily and by design as active and important centers of governmental activity. States were institutions of inherent authority, while the federal government by original intent and then explicitly by amendment, was a government of only delegated powers. Since the federal government derived its power directly from the people and acted directly on individuals, it was decisively more powerful than the pre-Constitution Confederation. But the Bill of Rights itself is evidence of the continued worry, pervasive until modified by the Reconstruction Amendments, that the federal government might, but should not, overwhelm the states.
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16

Konig, David Thomas. "James Madison and Common-Law Constitutionalism." Law and History Review 28, no. 2 (May 2010): 507–14. http://dx.doi.org/10.1017/s0738248010000076.

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In 1789 James Madison and Thomas Jefferson engaged in one of their many exchanges on constitutionalism. As with other Jeffersonian flights of philosophy, the younger Madison had to rein in the excesses of his senior partner and collaborator. The issue at hand was Jefferson's famous opinion “that the earth belongs in usufruct to the living.” So confident was Jefferson in the truth of this idea that he called it “self-evident.” Their exchange has received insightful and comprehensive analysis, which needs no revisiting here. Adrienne Koch, whose treatment of this “intellectual reciprocity” is among our most careful, sees it as revealing the essence of the two men, pitting the “more speculative and more daring” Jefferson against “the more astute politician” Madison.
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17

Foster, David. "Law, Liberty and the Constitution: A Brief History of the Common Law." Journal of Legal History 36, no. 3 (September 2, 2015): 336–38. http://dx.doi.org/10.1080/01440365.2015.1089036.

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18

Constable, Marianne. "The Predicament of Modern Law: Parker's History of a Law Without a History that Matters." Law & Social Inquiry 40, no. 01 (2015): 238–44. http://dx.doi.org/10.1111/lsi.12118.

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Kunal Parker's Common Law, History, and Democracy in America, 1790–1900: Legal Thought Before Modernism shows how nineteenth‐century thinkers thought about law and history differently than do post‐Holmesian modernist sociolegal scholars, whose ahistorical law appears contingent on politics, power, or will. Understanding time and history to be essential to law, nineteenth‐century jurists conceived of a common law that was able to work with and to shape democracy, Parker argues. Contra modernist histories then, Parker claims that the common law was not a reactionary force that stood in the way of democracy and economy. His history of legal thought before modernism suggests, further, the predicament of antifoundationalist modern law and modernist scholars: stripped of time and without its own history, how can law be anything other than politics, power, or will?
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19

Zitzke, Emile. "The history and politics of contemporary common-law purism." Fundamina 23, no. 1 (2017): 185–230. http://dx.doi.org/10.17159/2411-7870/2017/v23n1a8.

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20

McColgan, A. "Common law and the relevance of sexual history evidence." Oxford Journal of Legal Studies 16, no. 2 (June 1, 1996): 275–308. http://dx.doi.org/10.1093/ojls/16.2.275.

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21

Byberg, Rebekka. "The History of Common Market Law Review 1963-1993." European Law Journal 23, no. 1-2 (March 2017): 45–65. http://dx.doi.org/10.1111/eulj.12201.

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22

Smith, C. "Review: A History of Water Rights at Common Law." Journal of Environmental Law 17, no. 2 (January 1, 2005): 298–300. http://dx.doi.org/10.1093/envlaw/eqi024.

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23

Orth, John V., and A. W. Brian Simpson. "Leading Cases in the Common Law." American Historical Review 102, no. 3 (June 1997): 811. http://dx.doi.org/10.2307/2171557.

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24

Cairns, John W. "The Common Law Tradition: Lawyers, Books and the Law, J. H. Baker." English Historical Review 116, no. 465 (February 2001): 202–3. http://dx.doi.org/10.1093/enghis/116.465.202.

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25

Cairns, J. W. "The Common Law Tradition: Lawyers, Books and the Law, J. H. Baker." English Historical Review 116, no. 465 (February 1, 2001): 202–3. http://dx.doi.org/10.1093/ehr/116.465.202.

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26

Zimmermann, Reinhard. "Mathias Reimann, Historische Schule und Common Law." Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Romanistische Abteilung 114, no. 1 (August 1, 1997): 543–48. http://dx.doi.org/10.7767/zrgra.1997.114.1.543.

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27

Lobban, Michael. "English Common Law in the Age of Mansfield." English Historical Review CXXI, no. 490 (February 1, 2006): 317–19. http://dx.doi.org/10.1093/ehr/cej083.

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28

Hoffeimer, Michael H. "The Common Law of Edward Christian." Cambridge Law Journal 53, no. 1 (March 1994): 140–63. http://dx.doi.org/10.1017/s0008197300096926.

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Edward Christian has been treated unfairly by history. As the first Downing Professor of the Laws of England and the first lecturer on common law in Cambridge, Christian suffered the chronological misfortune of launching his academic career in the wake of Blackstone's extraordinary achievement. Until recent years Blackstone's brilliance has obscured the intellectual originality and historical significance of all his successors.1 Moreover, Christian's misfortune in following Blackstone was aggravated by a lack of professional success at the Bar and by a seemingly abrasive personality that won him a number of eloquent enemies whose ridicule and comical anecdotes have long outlived their target.
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29

Aulia, Farihan, and Sholahuddin Al-Fatih. "PERBANDINGAN SISTEM HUKUM COMMON LAW, CIVIL LAW DAN ISLAMIC LAW DALAM PERSPEKTIF SEJARAH DAN KARAKTERISTIK BERPIKIR." Jurnal Ilmiah Hukum LEGALITY 25, no. 1 (July 14, 2018): 98. http://dx.doi.org/10.22219/jihl.v25i1.5993.

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The legal system or commonly referred to as the legal tradition, has a wealth of scientific treasures that can be examined in more depth through a holistic and comprehensive comparative process. Exactly, the comparison of the legal system must accommodate at least three legal systems that are widely used by countries in the world today. The three legal systems are the Continental European legal system, Anglo American and Islamic Law. The comparative study of the three types of legal systems found that the history of the Continental European legal system is divided into 6 phases, while Anglo American legal history began in the feudalistic era of England until it developed into America and continues to be studied until now. Meanwhile, the history of Islamic law is divided into 5 phases, starting from the Phase of the Prophet Muhammad to the Resurrection Phase (19th century until nowadays). In addition to history, the authors find that the Continental European legal system has the characteristic of anti-formalism thinking, while the Anglo American legal thinking characteristic tends to be formalism and is based on a relatively primitive mindset. While the thinking character of Islamic Law is much influenced by the thought of the fuqoha (fiqh experts) in determining the law to solve a problem, so relatively dynamic and moderate.
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30

Menski, Werner, and H. Patrick Glenn. "On Common Laws." American Journal of Legal History 47, no. 4 (October 1, 2005): 461. http://dx.doi.org/10.2307/30039568.

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31

Simpson, A. W. Brian, and Kevin M. Teeven. "A History of the Anglo-American Common Law of Contract." American Historical Review 97, no. 2 (April 1992): 522. http://dx.doi.org/10.2307/2165745.

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32

Ranieri, Filippo. "Watson, Alan, Legal History and a Common Law for Europe." Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Germanistische Abteilung 120, no. 1 (August 1, 2003): 377–79. http://dx.doi.org/10.1515/zrgga.2003.120.1.377.

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33

Jenks, Susanne. "Milsom, S.F. C . , A Natural History of the Common Law." Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Germanistische Abteilung 122, no. 1 (August 1, 2005): 403. http://dx.doi.org/10.7767/zrgga.2005.122.1.403a.

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34

Lavi, Shai. "Turning the Tables on Legal History: Parker's Common Law, History, and Democracy in America." Law & Social Inquiry 40, no. 01 (2015): 245–52. http://dx.doi.org/10.1111/lsi.12119.

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Parker's Common Law, History, and Democracy in America joins an ongoing effort to turn the tables on “law and …” by replacing the familiar question “What can history, sociology, and cultural studies tell us about law?” with a new line of inquiry asking “What can law teach us about the reach and limits of disciplinary thinking?” In his study of the reception of common law into nineteenth‐century American jurisprudence, Parker unearths a notion of time based on stability and repetition that challenges the dominant modernist and historicist approach to the writing of law and history. Parker, however, shies away from drawing the full implications of this move and it remains unclear whether, in the final analysis, he escapes the spell of legal historicism.
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35

Schmidt, Albert J., Michael Lobban, and P. J. Kelly. "The Common Law and English Jurisprudence 1760-1850." American Journal of Legal History 38, no. 2 (April 1994): 234. http://dx.doi.org/10.2307/845563.

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36

Tate, Joshua C. "Ownership and Possession in the Early Common Law." American Journal of Legal History 48, no. 3 (July 1, 2006): 280. http://dx.doi.org/10.2307/25434805.

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37

Banner, Stuart. "When Christianity Was Part of the Common Law." Law and History Review 16, no. 1 (1998): 27–62. http://dx.doi.org/10.2307/744320.

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Nineteenth-century American judges and lawyers often claimed that Christianity was part of the common law. From Kent and Story in the early part of the century, to Cooley and Tiedeman toward the end, the maxim that “Christianity is part and parcel of the common law” (or some variant thereof) was heard so often that later commentators could refer to it as a matter “decided over and over again,” one which “[t]ext writers have reiterated and courts have affirmed.” The maxim even received an endorsement of sorts from the Supreme Court, which in 1844 affirmed that “the Christian religion is part of the common law of Pennsylvania.”
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38

Banner, Stuart. "The Banality of the Commons: Efficiency Arguments Against Common Ownership Before Hardin." Theoretical Inquiries in Law 19, no. 2 (August 14, 2018): 395–407. http://dx.doi.org/10.1515/til-2018-0021.

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Abstract The Tragedy of the Commons tends to be remembered today as the canonical statement of the idea that commonly-owned resources will be overused. But this idea was well known for centuries before Hardin wrote. Hardin acknowledged that he got the example of cattle in a common field from the early nineteenth century economist William Forster Lloyd, and by Lloyd’s time the idea was already familiar and was already being applied to the analysis of overpopulation, Hardin’s primary concern. This paper will trace the history of the idea that common ownership is inefficient, and will suggest why The Tragedy of the Commons nevertheless quickly attained its canonical status.
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39

Berat, Lynn, Reinhard Zimmermann, and Daniel Visser. "Southern Cross: Civil Law and Common Law in South Africa." International Journal of African Historical Studies 33, no. 1 (2000): 169. http://dx.doi.org/10.2307/220286.

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40

Dabscheck, Braham, and Joellen Riley. "Employee Protection at Common Law." Labour History, no. 91 (2006): 227. http://dx.doi.org/10.2307/27516177.

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41

Gaddis, John Lewis. "History, Theory, and Common Ground." International Security 22, no. 1 (July 1997): 75–85. http://dx.doi.org/10.1162/isec.22.1.75.

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42

Tabuteau, Emily Zack, and Ralph V. Turner. "Judges, Administrators and the Common Law in Angevin England." American Journal of Legal History 40, no. 4 (October 1996): 512. http://dx.doi.org/10.2307/845418.

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43

Jones, N. G., and J. W. Tubbs. "The Common Law Mind: Medieval and Early Modern Conceptions." American Journal of Legal History 44, no. 3 (July 2000): 334. http://dx.doi.org/10.2307/3113880.

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44

Seipp, David J. "The Concept of Property in the Early Common Law." Law and History Review 12, no. 1 (1994): 29–91. http://dx.doi.org/10.1017/s073824800001124x.

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“There is nothing,” wrote William Blackstone, “which so generally strikes the imagination and engages the affections of mankind, as the right of property.” Property continues to occupy a place of enormous importance in American legal thought. More than just a staple of the first-year law school curriculum, the concept of property guides the application of constitutional doctrines of due process and eminent domain. A grand division between “property rules” and “liability rules” classifies our common law entitlements. Property is a concept of such longstanding importance in our law, of such great inertial momentum, that it has expanded to include nonphysical property in goodwill, inventions, designs, artistic expression, symbols, secrets, privacy, and celebrity, as well as “new” property in social security benefits, government contracts, job security, and occupational licenses. Recent scholars have identified property with autonomy, personality, political participation, and reliance interests. Thus expanded, the concept of property threatens to disintegrate. If it includes everything, does it mean anything?
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45

Padfield, Tim. "Copyright protection of unpublished works in the common law world." Archives and Records 42, no. 1 (January 2, 2021): 122–24. http://dx.doi.org/10.1080/23257962.2021.1878347.

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46

Simon, Jonathan. "Uncommon Law: America's Excessive Criminal Law & Our Common-Law Origins." Daedalus 143, no. 3 (July 2014): 62–72. http://dx.doi.org/10.1162/daed_a_00288.

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This essay explores the role that U.S. criminal courts play in shaping the uniquely punitive social order of the United States. U.S. courts have long been defined against the common law of England, from which they emerged. In this essay, I consider the English legacy and suggest that while the United States does draw heavily from common-law traditions, it has also innovated to alter them, a process that has established a criminal justice system even more punitive than that of England.
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47

Stark, Findlay. "THE DEMISE OF “PARASITIC ACCESSORIAL LIABILITY”: SUBSTANTIVE JUDICIAL LAW REFORM, NOT COMMON LAW HOUSEKEEPING." Cambridge Law Journal 75, no. 3 (November 2016): 550–79. http://dx.doi.org/10.1017/s0008197316000611.

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AbstractIn Jogee and Ruddock, the Supreme Court/Privy Council decided that the law on secondary liability took a “wrong turn” in 1984 in the Privy Council's decision in Chan Wing-Siu. Chan Wing-Siu's contemplation/foresight-based fault element for secondary liability was alleged by the Supreme Court/Privy Council to have bucked a legal trend towards requiring that the secondary party intended to encourage or assist every one of the principal's offences. This article presents an alternative history of secondary liability that explains a wider selection of cases from 1553–1984 than were considered in Jogee and Ruddock. On this alternative account, Chan Wing-Siu was simply a more explicit and intellectually honest decision than its predecessors. If this alternative view of history is accepted, the Supreme Court/Privy Council's claim to be merely “correcting” (rather than substantively reforming) the law of secondary liability should be rejected. Doing so would make more critical a question that was side-stepped in Jogee and Ruddock, namely whether this reform should have been undertaken by the judiciary, rather than the legislature.
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48

Brand, Paul, and J. W. Tubbs. "The Common Law Mind: Medieval and Early Modern Conceptions." American Historical Review 106, no. 4 (October 2001): 1433. http://dx.doi.org/10.2307/2693082.

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49

McHugh, P. G. "Sovereignty this Century - Maori and the Common Law Constitution." Victoria University of Wellington Law Review 31, no. 1 (April 3, 2000): 187. http://dx.doi.org/10.26686/vuwlr.v31i1.5965.

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This paper is an attempt to give a panorama of constitutional life in New Zealand this century as viewed through a particularly important window, the status of the aboriginal Maori people of these islands. Questions of Maori rights and their position in the constitutional order have become burning issues in this final quarter century and represent an immense challenge for the next. This exploration is particularly appropriate as we celebrate a century of law teaching in this capital city at a University which has produced many if not most of this country's distinguished and influential public lawyers. In many respects, the history we are about to review is also a history of common law constitutionalism in this country as well to a lesser extent as similar Anglophonic jurisdictions. We are looking not just at how that part of the common law we call "public law" has dealt with a particular ethnic group. Through this aboriginal window we are looking at the changing logic and reach of public law through the past century and at the nature and character of the common law itself.
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50

Erickson, Amy Louise. "Common Law versus Common Practice: The Use of Marriage Settlements in Early Modern England." Economic History Review 43, no. 1 (February 1990): 21. http://dx.doi.org/10.2307/2596511.

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