Category Archives: Legal History

‘A Cornish compensation claim’

“Here is another snippet on that vexed question: how did medieval law regard the foetus (something I have blogged about a bit. Much of the attention in this regard – including mine – has been on the law of homicide. That’s understandable, since we tend to think of the big question being ‘was it regarded […]

Marie-France Fortin, ‘Introduction to The King Can Do No Wrong – Constitutional Fundamentals, Common Law History, and Crown Liability

ABSTRACT ‘The king can do no wrong’ remains one of the most fundamental yet misunderstood tenets of the common law tradition. Confusion over the phrase’s historical origins and differing meanings has had serious consequences, making it easier for the state to escape liability for the harm caused to individuals by governmental officials or institutions. This […]

Asaf Raz, ‘The Original Meaning of Equity’

ABSTRACT Equity is seeing a new wave of attention in scholarship and practice. Yet, as this Article argues, our current understanding of equity is divided between two distinct meanings: on one side, the federal courts, guided by the Supreme Court, tend to discuss equity as the precise set of remedies known at a fixed point […]

Dan Priel, ‘The Legal Realists on Political Economy’

ABSTRACT Alongside the well-known jurisprudential ideas associated with legal realism, some scholars have highlighted the realists’ political-economic ideas. Best known among them has been Morton Horwitz, who has argued that the realists launched an ‘attack on the legitimacy of the market’. Other scholars challenged this view and argued there was no significant connection between legal […]

Emily Sherwin, ‘What Happened to Private Law in the US’

ABSTRACT Scholars associated with New Private Law have made persuasive arguments for the practical benefits of private law and have offered a surprisingly wide range of modern theoretical justifications for the continued role of private law. What is missing is the mechanism by which a thriving body of private legal doctrine can be sustained in […]

Leslie Katz, ‘In Mrs Gaskell’s Wives and Daughters, were Osborne Hamley and Aimée Scherer Lawfully Married?

ABSTRACT In Wives And Daughters, Osborne Hamley and Aimée Scherer participate in marriage ceremonies both in France and in Germany, possibly followed by a marriage ceremony in England. In this paper, I discuss whether either marriage ceremony conducted on the Continent resulted in a marriage that would have been recognised as valid by English courts. […]

Darryn Jensen, ‘Hume’s Conventionalist Account of Property and the History of English Land Law’

ABSTRACT The central theoretical assumption of English land law (and land law in related legal systems) that all rights in land are derivative of the Crown’s rights does not provide a full account of the origins of rights in land. ‘Liberal’ theories of the origin of property rights, which see property rights as something that […]

‘Priors, Promises and the Proper Observation of Old Books’

As a Land Law teacher with a research interest in medieval legal history, I am always interested to see the two parts of my academic world coming together. Sometimes this can be frustrating, when lawyers, judges or others misrepresent the law of the past, or throw around ‘medieval’ and ‘feudal’ in an inaccurate fashion (see […]

Taisu Zhang, ‘The Private Law Influence of the Great Qing Code’

ABSTRACT This chapter considers the socioeconomic functionality of legal codes and codification through the lens of late imperial Chinese legal history. Specifically, it asks whether formal legal codes can wield significant influence over private socioeconomic behavior despite being poorly enforced – or even unenforced – and whether such influence derives, in part, from the symbolic […]

Liam Cronan, ‘Of Property and Pilgrims: The Myth of Communal Property and the Realities of Corporate Charters and Land Tenures in Plymouth Colony’

ABSTRACT Each Thanksgiving, journalists discuss and debate the ‘communal’ ownership of land that allegedly existed in Plymouth Colony in the 1620s and its transition to ‘private’ property, supposedly providing an early glimpse of socialism versus capitalism in America. Recent law review articles have uncritically accepted this view. This article, by contrast, seeks to challenge this […]