Despite its mystique as the greatest Anglo-American legal protection, habeas corpus' history features power plays, political hypocrisy, ad hoc jurisprudence, and failures in securing individual liberty. This book tells the story of the writ from medieval England to modern America, crediting the rocky history to the writ's very nature as a government power. The book weighs in on habeas' historical controversies - addressing its origins, the relationship between king and parliament, the US Constitution's Suspension Clause, the writ's role in the power struggle between the federal government and the states, and the proper scope of federal habeas for state prisoners and wartime detainees from the Civil War and World War II to the War on Terror. It stresses the importance of liberty and detention policy in making the writ more than a tool of power. The book presents a more nuanced and critical view of the writ's history, showing the dark side of this most revered judicial power.
Henry John Roby (1830–1915) was a Cambridge-educated classicist whose influential career included periods as a schoolmaster, a Professor of Roman law at University College, London, an educational reformer and a Member of Parliament. First published in 1884, this volume provides an analysis and discussion of Justinian's Digesta, a compendium of second and third century Roman legal writings which forms part of the body of Roman civil law issued under Justinian I in 533 AD. It is considered a fundamental work of Roman jurisprudence. Roby discusses the historical context of the Digesta, compares extracts in other legal sources with the original text and provides the Latin text of De Usufructu (one of the titles from the Digesta) with detailed close textual discussion and analysis. This volume was the first published guide to studying the Digesta and is considered one of Roby's most important contributions to jurisprudence.
No figure stands taller in the world of First Amendment law than Oliver Wendell Holmes, Jr. This is the first anthology of Justice Holmes's writings, speeches and opinions concerning freedom of expression. The book contains eight original essays designed to situate Holmes's works in historical and biographical context. The volume is enriched by extensive commentaries concerning its many entries, which consist of letters, speeches, book excerpts, articles, state court opinions and U.S. Supreme Court opinions. The edited materials – spanning Holmes's 1861–1864 service in the Civil War to his 1931 radio address to the nation – offer a unique view of the thoughts of the father of the modern First Amendment. The book's epilogue, which includes a major discovery about Holmes's impact on American statutory law, explores Holmes's free speech legacy. In the process, the reader comes to know Holmes and his jurisprudence of free speech as never before.
Written by leading authorities in history, philosophy, jurisprudence and political theory, the essays in this volume provide insights into the variable and changing contents of the rights thinking and consciousness that lie at the core of American political culture and shape its central political institutions. Based on the current state of scholarly understanding and intended to provide a fresh sense of orientation into the complexities of the separate topics covered, the studies focus on two distinct 'moments' in the American experience: the eighteenth-century period of founding that produced the Bill of Rights as an element in the Constitutional settlement, and the contemporary moment, marked by a new historical consciousness of the difficulties of interpreting rights in changing contexts and thus by the continuing search for a properly grounded philosophical jurisprudence adequate to meet the ethical, social, and political conflicts of the present.
A central puzzle in jurisprudence has been the role of custom in law. Custom is simply the practices and usages of distinctive communities. But are such customs legally binding? Can custom be law, even before it is recognized by authoritative legislation or precedent? And, assuming that custom is a source of law, what are its constituent elements? Is proof of a consistent and long-standing practice sufficient, or must there be an extra ingredient - that the usage is pursued out of a sense of legal obligation, or, at least, that the custom is reasonable and efficacious? And, most tantalizing of all, is custom a source of law that we should embrace in modern, sophisticated legal systems, or is the notion of law from below outdated, or even dangerous, today? This volume answers these questions through a rigorous multidisciplinary, historical, and comparative approach, offering a fresh perspective on custom's enduring place in both domestic and international law.
The rediscovery of Roman law and the emergence of classical canon law around AD 1100 marked the beginnings of the civil law tradition in Europe. Between the twelfth and eighteenth centuries, a highly sophisticated legal science of a truly European dimension was developed. Since then the different European States have developed their own national legal systems, but with the exception of England and Ireland they are all heirs to this tradition of the ius commune. This historical introduction to the civil law tradition, from its original Roman roots to the present day, considers the political and cultural context of Europe's legal history. Political, diplomatic and constitutional developments are discussed, and the impacts of major cultural movements, such as scholasticism, humanism, the Enlightenment and Romanticism, on law and jurisprudence are highlighted. This contextual approach makes for a fascinating story, accessible to any reader regardless of legal or historical background.
The rediscovery of Roman law and the emergence of classical canon law around AD 1100 marked the beginnings of the civil law tradition in Europe. Between the twelfth and eighteenth centuries, a highly sophisticated legal science of a truly European dimension was developed. Since then the different European States have developed their own national legal systems, but with the exception of England and Ireland they are all heirs to this tradition of the ius commune. This historical introduction to the civil law tradition, from its original Roman roots to the present day, considers the political and cultural context of Europe's legal history. Political, diplomatic and constitutional developments are discussed, and the impacts of major cultural movements, such as scholasticism, humanism, the Enlightenment and Romanticism, on law and jurisprudence are highlighted. This contextual approach makes for a fascinating story, accessible to any reader regardless of legal or historical background.
In this 2004 book, Professor Amerasinghe examines the local remedies rule in terms of both historical and modern international law. He considers both the customary international law as well as the application of the rule to, among others, human rights protection and international organizations. Material includes bilateral investment treaties and state contracts. The law is dealt with in the light of state practice and the jurisprudence of international courts and tribunals. The book also ventures into important areas such as the incidence of the rule, limitations, the burden of proof and the application of the rule to procedural remedies, in which the law is less clear. It adheres to the requirements of juristic exposition and analysis where the law has been determined, but at the same time Amerasinghe offers criticisms and suggestions for improving the law in the light of modern policy considerations.
This is a study of the central role of history in late nineteenth-century American legal thought. In the decades following the Civil War, the founding generation of professional legal scholars in the United States drew from the evolutionary social thought that pervaded Western intellectual life on both sides of the Atlantic. Their historical analysis of law as an inductive science rejected deductive theories and supported moderate legal reform, conclusions that challenge conventional accounts of legal formalism. Unprecedented in its coverage and its innovative conclusions about major American legal thinkers from the Civil War to the present, the book combines transatlantic intellectual history, legal history, the history of legal thought, historiography, jurisprudence, constitutional theory and the history of higher education.
Since the classic contributions of Weber and Durkheim, the sociology of law has raised key questions on the place of law in society. Drawing together both theoretical and empirical themes, in this book Mathieu Deflem reviews the field's major accomplishments and reveals the value of the multiple ways in which sociologists study the social structures and processes of law. He discusses both historical and contemporary issues, from early theoretical foundations and the work of Weber and Durkheim, through the contribution of sociological jurisprudence, to the development of modern perspectives to clarify how sociologists study law. Chapters also look at the role of law in relation to the economy, politics, culture, and the legal profession; and aspects of law enforcement and the globalization of law. This book will appeal to scholars and students of the sociology of law, jurisprudence, social and political theory, and social and political philosophy.
Enacted in 2000 and in operation in the UK since 2005, the Freedom of Information (FOI) Act has revealed information which has generated calls for constitutional reform. A massive 'information jurisprudence' has developed through the decisions of the Information Commissioner, the Information Tribunal and the courts. Governments' responses to the war on terror have involved increased resort to claims of national security and accompanying secrecy, but these developments have to exist alongside demands for FOI and transparency. FOI has to balance access to and protection of personal information, and major amendments have been made to the Data Protection Act in order to balance the competing demands of transparency and privacy. This detailed discussion of FOI laws and personal data laws examines the historical development of secrecy, national security and government, and their modern context.
Since the classic contributions of Weber and Durkheim, the sociology of law has raised key questions on the place of law in society. Drawing together both theoretical and empirical themes, in this book Mathieu Deflem reviews the field's major accomplishments and reveals the value of the multiple ways in which sociologists study the social structures and processes of law. He discusses both historical and contemporary issues, from early theoretical foundations and the work of Weber and Durkheim, through the contribution of sociological jurisprudence, to the development of modern perspectives to clarify how sociologists study law. Chapters also look at the role of law in relation to the economy, politics, culture, and the legal profession; and aspects of law enforcement and the globalization of law. This book will appeal to scholars and students of the sociology of law, jurisprudence, social and political theory, and social and political philosophy.
The relationship between law and terrorism has re-emerged recently as a pressing issue in contemporary jurisprudence. Terrorism appears to take law to its limit, whilst the demands of counter-terrorism hold the cause of justice in contempt. At this point the case for engaging alternative intellectual approaches and resources is compelling. Ian Ward argues that through a closer appreciation of the ethical and aesthetical dimensions of terror, as well as the historical, political and cultural, we can better comprehend modern expressions and experiences of terrorism. For this reason, alongside juristic responses to modern expressions of terrorism, Law, Text, Terror examines a variety of supplementary literary texts as well as alternative intellectual approaches; from the drama of Euripides and Shakespeare, to the rhetoric and poetry of Burke and Shelley, the literary feminisms of Lessing and Rame, and the narrative existentialism of Conrad, Coetzee, Dostoevsky and DeLillo.
The relationship between law and terrorism has re-emerged recently as a pressing issue in contemporary jurisprudence. Terrorism appears to take law to its limit, whilst the demands of counter-terrorism hold the cause of justice in contempt. At this point the case for engaging alternative intellectual approaches and resources is compelling. Ian Ward argues that through a closer appreciation of the ethical and aesthetical dimensions of terror, as well as the historical, political and cultural, we can better comprehend modern expressions and experiences of terrorism. For this reason, alongside juristic responses to modern expressions of terrorism, Law, Text, Terror examines a variety of supplementary literary texts as well as alternative intellectual approaches; from the drama of Euripides and Shakespeare, to the rhetoric and poetry of Burke and Shelley, the literary feminisms of Lessing and Rame, and the narrative existentialism of Conrad, Coetzee, Dostoevsky and DeLillo.
No figure stands taller in the world of First Amendment law than Oliver Wendell Holmes, Jr. This is the first anthology of Justice Holmes's writings, speeches and opinions concerning freedom of expression. The book contains eight original essays designed to situate Holmes's works in historical and biographical context. The volume is enriched by extensive commentaries concerning its many entries, which consist of letters, speeches, book excerpts, articles, state court opinions and U.S. Supreme Court opinions. The edited materials – spanning Holmes's 1861–1864 service in the Civil War to his 1931 radio address to the nation – offer a unique view of the thoughts of the father of the modern First Amendment. The book's epilogue, which includes a major discovery about Holmes's impact on American statutory law, explores Holmes's free speech legacy. In the process, the reader comes to know Holmes and his jurisprudence of free speech as never before.
American constitutional lawyers and legal historians routinely assert that the Supreme Court's state action doctrine halted Reconstruction in its tracks. But it didn't. Rethinking the Judicial Settlement of Reconstruction demolishes the conventional wisdom - and puts a constructive alternative in its place. Pamela Brandwein unveils a lost jurisprudence of rights that provided expansive possibilities for protecting blacks' physical safety and electoral participation, even as it left public accommodation rights undefended. She shows that the Supreme Court supported a Republican coalition and left open ample room for executive and legislative action. Blacks were abandoned, but by the president and Congress, not the Court. Brandwein unites close legal reading of judicial opinions (some hitherto unknown), sustained historical work, the study of political institutions, and the sociology of knowledge. This book explodes tired old debates and will provoke new ones.
Despite its mystique as the greatest Anglo-American legal protection, habeas corpus' history features power plays, political hypocrisy, ad hoc jurisprudence, and failures in securing individual liberty. This book tells the story of the writ from medieval England to modern America, crediting the rocky history to the writ's very nature as a government power. The book weighs in on habeas' historical controversies - addressing its origins, the relationship between king and parliament, the US Constitution's Suspension Clause, the writ's role in the power struggle between the federal government and the states, and the proper scope of federal habeas for state prisoners and wartime detainees from the Civil War and World War II to the War on Terror. It stresses the importance of liberty and detention policy in making the writ more than a tool of power. The book presents a more nuanced and critical view of the writ's history, showing the dark side of this most revered judicial power.
Over the last decade, the Supreme Court of Pakistan has emerged as a powerful and overtly political institution. While the strong form of judicial review adopted by the Supreme Court has fostered the perception of a sudden and ahistorical judicialisation of politics, the judiciary's prominent role in adjudicating issues of governance and statecraft was long in the making. This book presents a deeply contextualised account of law in Pakistan and situates the judicial review jurisprudence of the superior courts in the context of historical developments in constitutional politics, evolution of state structures and broader social transformations. This book highlights that the bedrock of judicial review has remained in administrative law; it is through the consistent development of the 'Writ jurisdiction' and the judicial review of administrative action that Pakistan's superior courts have progressively carved an expansive institutional role and aggrandised themselves to the status of the r
This social history of Byzantine law offers an introduction to one of the world's richest yet hitherto understudied legal traditions. In the first study of its kind, Chitwood explores and reinterprets the seminal legal-historical events of the Byzantine Empire under the Macedonian dynasty, including the re-appropriation and refashioning of the Justinianic legal corpus and the founding of a law school in Constantinople. During this last phase of Byzantine secular law, momentous changes in law and legal culture were underway: the patronage of the elite was reflected in the legal system, theological terms from Orthodox Christianity entered the vocabulary of Byzantine jurisprudence, and private legal collections of uncertain origins began to circulate in manuscripts alongside official redactions of Justinianic law. By using the heuristic device of exploring legal culture, this book examines the interplay in law between the Roman political heritage, Orthodox Christianity and Hellenic cultur
The language of balancing is pervasive in constitutional rights jurisprudence around the world. In this book, Jacco Bomhoff offers a comparative and historical account of the origins and meanings of this talismanic form of language, and of the legal discourse to which it is central. Contemporary discussion has tended to see the increasing use of balancing as the manifestation of a globalization of constitutional law. This book is the first to argue that 'balancing' has always meant radically different things in different settings. Bomhoff uses detailed case studies of early post-war US and German constitutional jurisprudence to show that the same unique language expresses both biting scepticism and profound faith in law and adjudication, and both deep pessimism and high aspirations for constitutional rights. An understanding of these radically different meanings is essential for any evaluation of the work of constitutional courts today.
