Showing papers on "Common law published in 1998"

The European Court of Justice, National Governments, and Legal Integration in the European Union

Abstract: We develop a game theoretic model of the conditions under which the European Court of Justice can be expected to take “adverse judgments” against European Union member governments and when the governments are likely to abide by these decisions. The model generates three hypotheses. First, the greater the clarity of EU case law precedent, the lesser the likelihood that the Court will tailor its decisions to the anticipated reactions of member governments. Second, the greater the domestic costs of an ECJ ruling to a litigant government, the lesser the likelihood that the litigant government will abide by it (and hence the lesser the likelihood that the Court will make such a ruling). Third, the greater the activism of the ECJ and the larger the number of member governments adversely affected by it, the greater the likelihood that responses by litigant governments will move from individual noncompliance to coordinated retaliation through new legislation or treaty revisions. These hypotheses are tested against three broad lines of case law central to ECJ jurisprudence: bans on agricultural imports, application of principles of equal treatment of the sexes to occupational pensions, and state liability for violation of EU law. The empirical analysis supports our view that though influenced by legal precedent, the ECJ also takes into account the anticipated reactions of member governments.

The politics of law : a progressive critique

Abstract: * Introduction David Kairys Traditional Jurisprudence And Legal Education * The History of Mainstream Legal Thought Elizabeth Mensch * Legal Education as Training for Hierarchy Duncan Kennedy Selected Issues And Fields Of LawLitigation and the Legal Process * Politics and Procedure Martha Minow * Going to Court: Access, Autonomy, and the Contradictions of Liberal Legality Austin Sarat * Gay Rights and Identity Imitation: Issues in the Ethics of Representation Janet E. Halley The Quality of Life * Health Law Rand E. Rosenblatt * Environmental Law Gerald Torres Liberty * Freedom of Speech David Kairys * The Indivisible Framework of International Human Rights: Bringing It Home Rhonda Copelon Property * Property Joseph William Singer * The Stakes of Intellectual Property Law Keith Aoki Equality * Law and Race in Early America W. Haywood Burns * Antidiscrimination Law from 1954 to 1989: Uncertainty, Contradiction, Rationalization, Denial Alan Freeman * Race and Affirmative Action: A Critical Race Perspective Charles R. Lawrence III * Womens Subordination and the Role of Law Elizabeth Schneider and Nadine Taub * A Black Feminist Critique of Antidiscrimination Law and Politics Kimberl Crenshaw Crime and Justice * Crime and Punishment in the United States: Myths, Realities, and Possibilities Elliott Currie * Two Systems of Criminal Justice David Cole * Police Practices David Rudovsky Personal Injury * Torts Richard L. Abel * The Rise and Early Progressive Critique of Objective Causation Morton J. Horowitz Business * Contract Law as Ideology Jay Feinman and Peter Gabel * Contract Versus Politics in Corporation Doctrine William H. Simon Labor and Social Welfare * Critical Theory and Labor Relations Law Karl E. Klare * Welfare and Legal Entitlements: The Social Roots of Poverty Lucy A. Williams The Role and Structure of Government * The Political Tilt of Separation of Powers Jules Lobel * Redistribution and the Takings Clause Molly S. McUsid Progressive Approaches To The Law * Some Critical Theories of Law and Their Critics Robert W. Gordon * Language and the Law: Literature, Narrative, and Legal Theory Jane B. Baron and Julia Epstein * The Radical Tradition in the Law Victor Rabinowitz * The Sex of Law Frances Olsen * The Role of Law in Progressive Politics Cornel West

Law and Competition in Twentieth Century Europe: Protecting Prometheus

Abstract: 1. Introduction 2. Freedom, Law and Competition: The Nineteenth Century as Prelude 3. Fin-de-Siecle Austria: Conceiving Competition Law 4. Germany Before the First World War: Shaping the Discourse 5. The Interwar Period: Competition Law Takes Root 6. The Postwar Decades: Competition Law and Administrative Policy 7. Ordoliberalism: A New Intellectual Framework for Competition Law 8. Competition Law and Germany's Social Market Economy 9. Competition Law and European Integration: The Competition Law of the European Union 10. 1986 and After: Competition Law, the Member States and European Union 11. Law, Regulation and Competition: Europe and the Market Bibliography Index

The Commoning of the Common Law: The Renaissance Debate over Printing English Law, 1520-1640

Abstract: Should the laws of England be printed? What were the likely effects of different strategies of dissemination? From the early sixteenth century through the English Revolution, these questions framed a debate among English lawyers over the propriety, advantages and risks of legal publication. Advocates of law printing envisioned national unity, godliness, and social harmony flowing from the legal press as readily as quartos and folios. Opponents, like the barrister William Hudson, warned of releasing the inner reasons and fictions of the law "to the multitude, who are apt to furnish themselves with shifts to cloak their wickedness, rather than to gain understanding to further the government of the Commonwealth." Participating in the expansion of law publishing underway in Elizabethan and early Stuart England, lawyers questioned print's impact on a profession heavily dependent on manuscripts and oral tradition and on a nation reading lawbooks without the interpretive conventions imbued by legal training. This essay pursues an intellectual history of law publishing. It explores lawyers' uncertain, divisive, and changing opinions about the effects and meanings of the legal press - their attacks, defenses, interpretations, aspirations, and warnings. The story unfolds in four sections. The first explores the initial justification of law printing offered in Henrician England, an echo of humanist and Protestant advocacy of textual dissemination as an agent of godly order. As it dissolved obscurantism, its friends claimed, the legal press solidified obedience to kingly authority against local, seigneurial, and ecclesiastical rivals. The second section discusses how an emerging group of latter sixteenth-century skeptics such as Hudson, the "anti-publicists," questioned these irenic predictions about the effects of lawbooks. Disorder, degeneracy, and disunion were their counter-prophesies. Absolutist and high church conformist suspicions of "publicity" inclined anti-publicists to disapprove of revealing the law's inner reasons and fictions. They wanted it to speak in a voice of command, not persuasion. The third section explores the contexts engendering the debate and making plausible the disputants' contrasting prophesies about the effects of lawbooks. Three interrelated developments stand out: the growing lay audience putting lawbooks to political uses and undermining the tacit identification of the reading public with the profession; increasing episcopal and absolutist suspicion of the unwitting dangers of licit printing; and the gradual realization within the profession of how print reshaped the control of knowledge (and hence of status and power) among themselves and between themselves and the nation. The fourth and final section reflects on how the controversy over law printing implicated a larger change in English legal culture: the "commoning" of the common law. In reaction to the anti-publicist critique, publicists helped further the gradual redefinition of the law as a national inheritance rather than a guild or royal possession. They defended popular right of access to the inner reasons of the law, valorized lay rather than royal or guild "ownership" of the law, and brought out the latent constitutionalist implications of legal printing. In the realm of perception, they helped transform the laws of the realm of England into the laws of Englishmen.

Muslim family law

Abstract: Historical introduction. Indian subcontinent - English law in India. Marriage. Polygamy. Parent and child. Dissolution of marriage. Inheritance. Conflict of laws. Commercial and contract law. Reform of Muslim law and fundamentalism. Glossary of terms.

In the Shadow of Marriage: Gender and Justice in an African Community

Abstract: This is a comparison between the traditional customary legal system and the colonial common law of courts and magistrates in Botswana. It sets out to show how the structure of both legal institutions is based on power and gender relations which heavily favour males. Griffiths' analysis is based on careful observation of how people actually experience the law as well as the more standard tools of statutes and cases familiar to Western legal scholars. She explains how women's access to law is determined by social relations over which they have little control. In this powerful feminist critique of law and anthropology, Griffiths shows how law and custom are inseparable for Kwena women. Both colonial common law and customary law pose comparable and constant challenges to Kwena women's attempts to improve their positions in society.

International Law and Eurocentricity

Abstract: This article is a review of two books focused on anti-colonialism The first book, Legal Polycentricity, validates two contradictory arguments: first, that international law’s universality approach must be replaced with an acceptance of moral pluralism, and, second, that the great benefit of international law is that it is universal The second book, Sovereigns, Quasi Sovereigns and Africans, explores two ways in which international law bears the imprint of the hierarchical nature of European-non-European relationships over time: in European thought, and in the context of European imperialism, colonialism, and neo-colonialism The book examines these issues through consideration of discourse in international law, and in the context of Namibian decolonizationThese books help to illustrate that there is a more subtle reading of the scholarship of the first generation of African international lawyers who first wrote of these issues in the 1960s and 1970sThis article argues that these books reflect two traditions within the first generation of third world scholars One group of third world scholars like Elias Olawale and Sinha Prakash who argued that Africa, and third world countries in general, had participated in creating the civilizational pluralism from which international law was created Another group of scholars like UO Omozurike, SBO Gutto and Mohammed Bedjaoui who argued that international law reflected the structural and economic inequalities produced by colonial rule The review notes the emerging voices of a new generation of third world scholars of international law, (TWAIL), in the work of scholars like Antony Anghie and Siba Grovogui who trace the origins of international law to distinctions made between Europeans and non-Europeans by leading jurists of international law such as Vitoria and who trace the legacy of such distinctions made to subordinate third world peoples in contemporary international law doctrines and institutions

Towards a European Civil Code

Abstract: General issues substantive law family law and law of succession contract law - general issues contract law - specfic contracts restitution tort property trust company law.

A new positive economic theory of negligence

Abstract: Within the last generation, economic analysis has produced a wealth of insights into common law principles and especially into the common law of tort.' Two distinct traditions have emerged within the economic approach to tort law. The normative tradition attempts to evaluate the economic desirability of liability rules with a view toward reforming them.2 In contrast, the positive tradition uses economic concepts to explain common law liability rules with a view toward gaining a better understanding of the rules themselves and of their social consequences.3 The hypothesis

Comparative Law as a Subversive Discipline

Abstract: We rarely think about the schools of legal thought as movements that either reinforce or undermine established legal authority. Yet in respect to their stabilizing or destabilizing effect, "establishment" or "subversive" tendencies, philosophical arguments often have political side effects. The classic conservative or "establishment" position is expressed in the work of Sir Edward Coke who regarded the common law as a fixed body of principles dictated by reason. Neither the King nor Parliament had the right to tamper with the common law. Coke's views had the effect of buttressing his decision in Dr. Bonham's case, in which Coke's court held that a statute of Parliament was null and

Integrating the environment: the European Court and the construction of supranational policy

Abstract: The European Court of Justice operates to expand the integration project by serving as an arena for transnational political action carried out by national and supranational policy actors. This article examines this dynamic through the evolution of environmental protection policy in the European Union. The data presented in this analysis pertain to Article 177 of the Treaty of Rome. The Article 177 procedure reveals the Court's role in constructing European environmental law, and also the integral role that national judges and private litigants (individuals and interest groups) play in deepening integration. Furthermore, this procedure reveals a Court which often acts in opposition to national government preferences. The general framework proposed by this analysis is appropriate for examining the case law in subsequent policy areas.

When Christianity Was Part of the Common Law

Abstract: 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.”

Privatizing the Universities

Abstract: For most of the twentieth century, privatization of state universities seemed inconceivable. By 1997 government reviews of tertiary education in the United Kingdom, Australia, and New Zealand were all exploring variations on a market-driven theme. Similar policy agendas were being promoted through international agencies like the World Bank and the Organization for Economic Co-operation and Development (OECD). This article examines the convergence of tertiary education restructuring and the extent to which that reflects, and serves to embed, an ascendant neo-liberal hegemony. Taking the extreme example of New Zealand, it assesses the implications of a global competitive model of tertiary education for law schoools in the common law world.

Statelessness and the Problem of Resolving Nationality Status

Abstract: 'Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality, nor denied die right to change his nationality.' Such is the text of article 15 of die 1948 Universal Declaration of Human Rights. This has not always been die case. The right to a nationality and die notion of'effective nationality', of nationality as a basis for the exercise of odier rights, have been developed through the course of this century. Notable landmarks include die 1930 Hague Convention on Certain Questions relating to die Conflict of Nationality Laws, die 1961 Convention on die Reduction of Statelessness, and die 1997 European Convention on Nationality. The principles contained in diese conventions have been elaborated upon and reinforced by other treaties, jurisprudence, and State practice. The right to a nationality is a human right, in turn, out to serve as a basis upon which to settie issues pertaining to the acquisition, loss, or denial of nationality. If everyone has die right to a nationality, how is tiiis right to be realized, how is nationality to be ascribed? International law stipulates tiiat it is for each State to determine, dirough die operation of national law, who are its citizens. This determination will be recognized at the international level so far as it accords widi general principles of international law. The State, dierefore, should not apply measures which conflict witii international principles relating to the acquisition, loss, or denial of citizenship. This principle is enunciated in the 1930 Hague Convention, die 1997 European Convention, and die case law of bodi die Permanent Court of International Justice and International Court of Justice.

Judicial discretion in the House of Lords

Abstract: Preface 1. Politics and Judicial Discretion 2. A Statistical Analysis of Judicial Discretion 3. Judicial Methodology in Statutory Interpretation 4. Judicial Methodology and the Common Law 5. In Re Pepper v Hart: Comments on the nature of Laws 6. Pure Policy - The Law of Negligence 7. Imposing Rationality on the State 8. Public Law and the Liberty of the Person 9. Judicial Review as Welfare Management 10. Conclusion - Legal Argument and Politics Index

Macaulay and the Indian Penal Code of 1862: The Myth of the Inherent Superiority and Modernity of the English Legal System Compared to India's Legal System in the Nineteenth Century

Abstract: On 1 January 1862, the British enacted the Indian Penal Code, and within two decades most of India's law was codified. Ironically, England still awaits a criminal code, and the vast majority of English law remains uncodified, in the form of statute or common law. Hindu and Muslim law was rarely included in these Indian law codes, so the entire codification process represented the transplantation of English law to India, complete with lawyers and judges. A modest historiography has investigated the effect codification had on Indian society; or as Marc Galanter theorized, what happened to India's indigenous law as a result of the formation of a modern Indian legal system. However, Galanter's question implicitly assumed that England's legal system was modern. That assumption has resulted in a misleading interpretation of the Indian Penal Code.

The spirit of Japanese law

Abstract: The Spirit of Japanese Law focuses on the century following the Meiji Constitution, Japan's initial reception of continental European law. While most westerners may view judges as Japanese law's least significant actors, Haley argues that they have the last word because their interpretations of constitution and codes define the authority and powers they and others hold. Based on a "sense of society, " the judiciary confirms bonds of village, family, and firm, and "abuse of rights" and "good faith" similarly affirm community. The Spirit of Japanese Law concludes with constitutional cases that help explain the endurance of community in contemporary Japan.

A practitioner's guide to the European Convention on Human Rights

Abstract: Practice and Procedure: Procedure before the European Court of Human Rights Admissibility Checklist Convention Principles and Approach Sources of case law and information. Problem Areas: Fair Trial Guarantees Others. Just Satisfaction: General Principles Pecuniary Loss Non-pecuniary Loss Legal costs and Expenses Default Interest. Appendices.

Law, Ethics and the Visual Arts

Abstract: Since its first edition in 1979, "Law, Ethics and the Visual Arts" established itself as the leading art law text among law professors, students, and practitioners. This new and newly illustrated, fifth edition, revised in collaboration with Stephen K. Urice, incorporates recent changes in treaty, statutory, and case law. It includes discussion of recent developments from the resurgence of iconoclasm to military conflicts' depredations on cultural property. As in earlier editions, the authors present legal issues in their historical contexts. The broad range of topics addressed in the 5th edition, makes the text especially adaptable for use in multiple classroom settings. These topics include: U.S. museums' return of works of art and antiquities to claimants such as Holocaust survivors and foreign nations; artist's rights such as copyright and moral rights; international movement of art and antiquities; fakes and forgeries in the art market; the inner workings of art auctions; plundering and destruction of works of art in times of war and military conflict; censorship of "obscene" or politically challenging works of art; and, many more. In this edition, documents previously presented in a separate documentary appendix have been integrated into the text to provide immediate access to important treaties and other materials. Whether you need to understand something as provocative as who owns the past, or something as mundane as whether a museum can sell a work of art to fix the roof, "Law, Ethics and the Visual Arts" provides the information you need. It combines unassailable scholarship with a deeply humanistic approach, recognizing that law and art each "impose a measure of order on the disorder of experience without stifling the underlying diversity, spontaneity, and disarray".

Final Appeal: Decision-Making in Canadian Courts of Appeal

Abstract: Law, Crime, Punishment and SocietyGreg MarquisIan Greene et al. Toronto: James Lorimer and Company Ltd., 1998. 235 pp.Legal studies in Canada are experiencing a golden age as articles, anthologies and monographs produced by academics trained in the 1980s and 1990s continue to appear. Nine books, nearly 50 authors and more than 2,000 pages of text and notes later, this reviewer is suffering from intellectual fatigue, but the type that comes from a good workout.In terms of Canada's legal history, the Osgoode Society has been the leading force for publication for two decades. As of 1999 it had produced more than three dozen monographs or collections of essays. Its most recent anthology is edited by G. Blaine Baker and Jim Phillips, law professors who are also noted legal historians. Essays in the History of Canadian Law VIII evolved out of a 1998 conference dedicated to pioneering legal scholar R.C.B. Risk. In the 1970s the American-trained Risk published on the relationship between law and the economy in nineteenth-century Ontario. Significantly, these essays did not appear in history publications, but in law journals. His work is largely unknown to most Canadian historians, but Risk has exerted an important influence on legal history scholars associated with law faculties. His stature is acknowledged by two scholars of international repute, Robert Gordon and David Sugarman, and his body of work and its effect are assessed in an insightful chapter by G. Blaine Baker.Most of the contributors to the Risk festschrift are involved with law schools, and the tone of most chapters tends towards classic legal history. Many of the contributions will challenge undergraduate students of history or criminal justice. Exceptions include Constance Backhouse's study of a racially motivated murder of a member of the Onyota'a:ka (Oneida) First Nation in 1902, a case study that underscores the lack of research on race and law in Canadian history. Hamar Foster's examination of Indian title in British Columbia and John McLaren's article on Chinese criminality in British Columbia from 1890 to 1920 also have broader appeal than mainstream legal history. White society "racialized" the Chinese not only through stereotypes, but through criminal law and law enforcement, especially in the areas of gambling, prostitution and opium smoking. McLaren indicates that although the Chinese in British Columbia were subjected to legal and bureaucratic racism, police harassment and informal discrimination, as a "despised minority" they also appealed to the rule of law and the courts for protection. On a more mundane level they utilized the civil courts for disputed commercial transactions. Because most criminal convictions against the Chinese were summary offences, it was rare for them to surface in appeal courts. Yet according to McLaren, appellate judges in British Columbia were guided by law, not racial prejudice, in many of their rulings involving the Chinese.Peter Oliver's chapter on the judiciary in the historiography of Upper Canada offers a counter-revisionist critique of recent interpretations that condemn the colonial elite's manipulation of the legal system under the constitution of 1791. For much of the twentieth century, conservative and "consensus" historians of Upper Canada regarded judges and other members of the legal elite in a positive manner and dismissed radical reformers such as William Lyon Mackenzie as "demagogues." Early nineteenth-century reformers had complained loudly over the administration of justice, particularly when it was abused by Tory magistrates and judges for political ends. In recent years, scholars examining treason, sedition, libel and a number of celebrated murder trials have portrayed the Tory elite as subverting the rule of law. According to Oliver, it was the appointed judges, not popular politicians, who pressed for law reform prior to the 1840s - reforms such as the notable diminution of capital offences in 1833, jail reform and prisoners' rights. …

Expected Transaction Costs and Incentives for Water Market Development

Abstract: California provides the opportunity to analyze both the potential social gains from water transfers and the institutional constraints, including transaction costs, that can limit water market performance Common law principles, constitutional provisions, State and Federal statutes, court decisions, water agency policy and contracts all govern how water is developed, allocated and used (xcState of California, 1995) This complex institutional setting creates a heterogeneous system of water-use rights resulting in uncertainty regarding the precise legal entitlements conferred with use rights State and Federal law and policy governing water transfers and liability for any related economic and environmental impacts have been clarified over the past ten years to facilitate water market development Despite these clarifications, uncertainty regarding use rights, transfer procedures, and transaction costs remains As a consequence, water markets are yet to develop as anticipated Drawing on recent experience, this chapter explores both the potential for social gains-from-trade in water-use rights and the institutional barriers constraining such trade, particularly focusing on the impact of heterogeneous water-use rights and transaction costs

Efficiency in Western Water Law: The Development of the California Doctrine, 1850–1911

Abstract: The development of water law in California has been heavily studied by legal historians. Much interest and controversy has surrounded the fact that early on, California adopted a system of water law that recognizes both riparian and appropriative rights and that persists to this day. How well this hybrid system has promoted economic efficiency in the use of water in California has been poorly understood. This article examines the early development of California water law to understand how such a hybrid system emerged and how well it promoted economic growth. The key argument is that nineteenth‐century California jurists, though constrained by legislative mandates to observe English common law, worked within the confines of that doctrine to mitigate some of its potential inefficiencies. This article provides empirical evidence that those jurists selectively promoted appropriative claims in situations of high transactions costs in order to encourage reallocation of water from existing riparian uses.

The Politics of Rights in Israeli Constitutional Law

Abstract: [In] the United States . . . the Supreme Court took upon itself the right, despite the fact that it was not explicitly so authorized in the Constitution, to determine whether a law made by the people's representatives in Congress suits or contradicts the Constitution, and it [the Court] has the power to void a law, even if the large majority of the people and their representatives support it, on the grounds that the law violates the Constitution. And so the [U.S.] Supreme Court turned into a preserving, hindering force, which prefers property rights over human rights. And when it was decided, in the United States, to impose income tax, the rich came to argue before the Supreme Court that the law contradicts the Constitution, and the Supreme Court voided the inheritance law [sic], making it necessary, eventually, to amend the Constitution. But if thirteen out of forty-eight states had objected to the amendment, then the thirty-five remaining states and the two-thirds of Congress could not have amended the Constitution, and the people's wish to impose income tax would have failed utterly. There was a second case where Congress regulated child labor, and the Supreme Court . . . voided this law on constitutional grounds. And so it is a bit strange that here [in Israel], parties in favor of "progress" and proponents of the "powers of tomorrow" enthusiastically seek such a regime.—[Then-Prime Minister David Ben-Gurion, in a 1950 Israeli parliamentary (Knesset) debate on whether to draft a constitution (Report of the Committee for the Constitution, Legislation and Law on a Constitution for the State and Debates in the First Knesset 66 (1952) [Hebrew]].

Women, Work and Care: Women's Dual Role and Double Burden in Ec Sex Equality Law:

Abstract: This article reviews EC sex equality law, es pecially recent case law of the European Court of Justice, using a frame of analysis based on the double burden of women's dual role in 'work' and 'care...

Women and property in early modern England: A case‐study

Abstract: The operation of the English Common Law governing the ownership and inheritance of property seems to offer compelling proof of the utter subjection of women: a woman inherited property only if she had no brothers, on marriage she surrendered all personal estate and control of her real estate, while married she could not sue, obtain credit or sign a contract in her own name, or write a will without express permission from her husband, and if he died before her she was entitled to only so much of his estate as had been reserved to her by jointure (commonly about IO per cent of the compounded value of her own marriage portion) or was voluntarily devised to her in his will. Add to this a vignette of Sir Edward Coke, the doyen of the Common Law, tying his daughter to the bedpost and having her whipped until she agreed to marry a lunatic who happened to be a brother of the current royal favourite, and any discussion of women and property in early modern England seems likely to induce profound depression. This gloomy prospect derives from studies of the application of the Common Law in the family settlements of gentlemen and landowners. In her book Women and Property in Early Modern England Amy Louise Erickson has discerned a little more warmth and sunlight elsewhere on the scene. She examines wills, inventories and administration accounts to uncover much broader patterns of property distribution among more ordinary families. Daughters inherited on a remarkably equitable basis with their brothers, although girls usually inherited personal property and boys more often real property. In general widows were the principal beneficiaries of their husband's wills, and the widows of intestate men enjoyed at least as many benefits as widows of men who made wills, in terms of moveable goods. At the ordinary social level, primogeniture did not dominate the distribution of property.1 Erickson's work is based almost entirely on wills, inventories and the probate accounts tendered to the ecclesiastical courts. Estimates of the proportion of the populace of early modern England who left wills vary from less than 5 per cent up to at most 45 per cent, but she has also been able to trace some instances of how the ecclesiastical courts divided up the estates of those who died intestate. She recognizes the importance of Chancery records, but apart from some preliminary counting in one division, consigns them to the too time-consuming basket. In conclusion, while recognizing a gap between legal prescription and observable reality, she argues against any 'celebratory' account of legal history:

Justice and Indigenous Land Rights

Abstract: Political theorists have begun to re-examine claims by indigenous peoples to lands which were expropriated in the course of sixteenth-eighteenth century European expansionism. In Australia, these issues have captured public attention as they emerged in two central High Court cases: Mabo (1992) and Wik (1996), which recognize pre-existing common law rights of native title held by indigenous people prior to European contact and, in some cases, continue to be held to the present day. The theoretical significance of the two Australian cases is examined and the links drawn out between the current debate about Aboriginal land rights in Australia and the wider philosophical debate about indigenous land rights, property rights, and indigenous justice as characterized by Jeremy Waldron and James Tully. Justice towards indigenous groups requires substantial acknowledgement and recognition of the values and institutions of the relevant indigenous group; yet, these values and institutions may not readily fall under t...

‘I, Me, Mine’: Bodies, Parts and Property*:

Abstract: The idea that human bodies and their parts are ‘property’ has traditionally found little support in English law. By contrast, philosophers have mused at the prospect of persons owning themselves and the justice of self-ownership and its implications for the product of a person's labours. There are signs that the common law may be prepared to recognise that parts of a body are ‘property’ and subject to control by their source or another. In the recent case of R v Kelly, the English Court of Appeal decided that parts of corpses held as anatomical specimens were ‘property’ and could be stolen. The impact of the court's view may be considerable in respect of tissue and parts held by medical or other institutions for research, storage, archival or transplantation purposes; conferring legal protection where otherwise there would be none. What, however, of body parts or tissue taken from living persons? Is this ‘property’ and, if so, who has “rights” over it? The implications are considerable for patients and ot...

Is comparative law a distinct discipline

Abstract: Jurists studying their domestic law ask what it is or should be. Comparative lawyers compare the law of different legal systems. Are these really distinct enterprises? Many domestic lawyers think so because they assume that their own cases, statutes and treatises are the only authorities relevant to the question of what their own law is. Italian cases or French statutes or German treatises could only be relevant to Italian or French or German law. They do not think this conclusion requires argument. They take it as obviously true. Comparative lawyers often react in the same way, in part because of their own experience. When they study how the law of different countries deals with a particular problem, they usually find that the decided cases involve different facts, and that the law is stated differently in statutes and treatises. They promptly assume that the law of France deals with the problem differently than the law of Germany. Here I will argue that the law of different legal systems may be much the same even if the decided cases and the authoritative statements made in statutes and treatises look different. To decide whether it is the same requires a careful analysis which should be made in the same way by a comparative and a domestic lawyer. To the extent that the law turns out to be the same, then it should be analyzed in the same way by both the comparative and the domestic lawyer. Their methods begin to diverge only when the law they are studying is genuinely different, and even then, their methods are interdependent. Neither can neglect the other's conclusions. Let us consider, successively, the states in which a comparative or a domestic lawyer might find the law of a particular jurisdiction. One possible state is that of extreme confusion: there might be a mass of case law and no idea what rules the courts are following or what principles of justice or policy are guiding them. Even to describe the existing state of the law, neither the domestic nor the comparative lawyer can simply catalog the decided cases. Case law is law only to the extent it indicates or affects the way new cases will be decided. Merely to describe the law, the comparative and the domestic lawyer