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Beyond Dogmatics: Law and Society in the Roman World

John W. Cairns and Paul J. du Plessis

This book contributes to the debate about the relationship between law and society in the Roman world. This debate, which was initiated by the work of John Crook in the 1960s, has had a profound ... More

This book contributes to the debate about the relationship between law and society in the Roman world. This debate, which was initiated by the work of John Crook in the 1960s, has had a profound impact upon the study of law and history and has created sharply divided opinions on the extent to which law may be said to be a product of the society that created it. This work is an attempt to provide a balanced assessment of the various points of view. The chapters within the book have been specifically arranged to represent the debate. The chapters address this debate by focusing on studies of law and empire, codes and codification, death and economics, commerce and procedure. This book does not purport to provide a complete survey of Roman private law in light of Roman society. Its primary aim is to address specific areas of the law with a view to contributing to the larger debate.Less

Cicero's Law: Rethinking Roman Law of the Late Republic

Paul J. du Plessis (ed.)

Why did Roman prosecutors typically accuse the defendant of multiple crimina, when in most standing criminal courts the punishment imposed on a guilty defendant was the same (typically “capital,” ... More

Why did Roman prosecutors typically accuse the defendant of multiple crimina, when in most standing criminal courts the punishment imposed on a guilty defendant was the same (typically “capital,” that is, a kind of exile), no matter how many charges were proven? The answer lies not in a failure to distinguish between legal charges leveled at the defendant and defamation of his character, but rather in a rhetorical strategy that made sense in light of what was legally necessary to obtain a conviction. The greater the number of charges, the more likely the jurors would be persuaded that the defendant had in some way violated the statute according to which the trial was being conducted. It is true that prosecutors typically argued that the defendant’s prior conduct made it plausible that he had committed the crimes with which he was charged, but in a way that, as much as possible, made his guilt on these particular charges seem likely, and defense patroni attempted to undermine the charges and the character defamation. This answer to the apparent contradiction between multiple charges and unitary punishment favors a moderate formalism over legal realism as the way to interpret Roman criminal trials.Less

The Community of the College of Justice: Edinburgh and the Court of Session, 1687 –1808

John Finlay

This book is an analysis of those who worked in the Court of Session, Scotland's central civil court, during the eighteenth century. It looks at the activities of the highest members of what was the ... More

This book is an analysis of those who worked in the Court of Session, Scotland's central civil court, during the eighteenth century. It looks at the activities of the highest members of what was the College of Justice, the judges and the advocates, whose arguments and decisions guided the development of Scots law, as well as the macers, clerks, keepers and agents whose roles were vital in allowing the court to deal with its business. The Court of Session had a central place in Edinburgh and its members were drawn from across Scotland. It was the professional milieu of men of the calibre of Lord Kames, Sir David Dalrymple of Hailes and Sir Walter Scott. Despite a turbulent history with a town council jealous of their privileges, College members made a profound contribution to the physical and cultural development of Edinburgh as a city. This is their story.Less

The Courts, the Church and the Constitution: Aspects of the Disruption of 1843

Commissioned by the Clark Foundation for Legal Education, this book is derived from the inaugural Jean Clark Lectures, hosted by the University of Aberdeen in 2007. Across three lectures, the text ... More

Commissioned by the Clark Foundation for Legal Education, this book is derived from the inaugural Jean Clark Lectures, hosted by the University of Aberdeen in 2007. Across three lectures, the text discusses and analyses the legal and constitutional issues arising from the Disruption of the Church of Scotland in 1843 when the majority of leading ministers left the Church of Scotland to set up the Free Church. It takes a look at the series of cases in the Court of Session and the House of Lords between 1837 and 1843 which led to the Disruption, showing how they gave rise to the most important constitutional crisis and challenge to the Courts' authority that had occurred since the 1707 Union.Less

The Creation of the Ius Commune: From Casus to Regula

John W. Cairns and Paul J. du Plessis

This book surveys the traditional classifications of private law to establish the cognitive techniques used by medieval Italian and French jurists to transform Roman law into the ius commune of ... More

This book surveys the traditional classifications of private law to establish the cognitive techniques used by medieval Italian and French jurists to transform Roman law into the ius commune of Western Europe. It discusses in detail how medieval scholars reacted to the casuistic discussions in the inherited Roman texts, particularly the Digest of Justinian. It shows how they developed medieval Roman law into a system of rules that formed a universal common law for Western Europe. Because there has been little research published in English beyond grand narratives on the history of law in Europe, this book fills a gap in the literature. With a focus on how the medieval Roman lawyers systematised the Roman sources through detailed discussions of specific areas of law, it considers: the sources of medieval law and how to access them; the development from cases to rules; medieval lawyers' strategies for citing each other and their significance; and the growth of a conceptual approach to the study of law.Less

Enlightenment, Legal Education, and Critique: Selected Essays on the History of Scots Law, Volume 2

John W. Cairns

This is the second volume in a collection of the most influential essays on legal history from the career of Professor John W. Cairns. The book deals with broad themes in legal history, such as the ... More

This is the second volume in a collection of the most influential essays on legal history from the career of Professor John W. Cairns. The book deals with broad themes in legal history, such as the development of Scots law through the major legal thinkers of the Enlightenment, essays on Roman law and miscellaneous essays on the literary and philosophical traditions within law. Both volumes combine together and reprint a selection of some of the many articles and essays published by Cairns over a distinguished career in legal history. It is a mark of Cairn's international eminence that much of his prolific output has been published outside of the UK, in a wide variety of journals and collections. The consequence is that some of his most valuable writing has appeared in sources which are difficult to locate.Less

Imagined States: Law and Literature in Nigeria, 1900-66

Katherine Isobel Baxter

Imagined States examines the significance of the law in colonial and postcolonial fiction from and about Nigeria between 1900 and 1966. The book argues that in the discrete period of the final ... More

Imagined States examines the significance of the law in colonial and postcolonial fiction from and about Nigeria between 1900 and 1966. The book argues that in the discrete period of the final half-century of British colonialism in Nigeria through into the early years of independence prior to the Biafran War, the law provided a key site for fiction’s negotiations with the increasingly complex realities of the colonial project. Attending to the representation of the law in that fiction provides important insights not only into the realities of the historical period but, equally importantly, into the dominant and emergent discourses and ideologies that shaped those realities. Imagined States explores a range of texts including popular, middle-brow and acclaimed postcolonial novels, as well as newspaper stories and memoirs, by both British and Nigerian authors (including Chinua Achebe, Joyce Carey, Cyprian Ekwensi and Edgar Wallace), focusing in particular on how the state of exception and ideas of civilisation were negotiated imaginatively in the law and fiction. These explorations are organised chronologically and thematically, moving from the law ‘upcountry’ (focusing on pre- and inter-war British representations of the District Commissioner), through the law in the city (focusing on late colonial and early postcolonial Nigerian fiction), to law and politics (focusing on postcolonial Nigerian representations of treason and violence).Less

Law Making and the Scottish Parliament: The Early Years

Elaine E Sutherland and Kay E Goodall

This book offers a wide-ranging critical analysis of legislative developments in those areas of law and policy devolved to the Scottish Parliament under the devolution settlement. It begins with a ... More

This book offers a wide-ranging critical analysis of legislative developments in those areas of law and policy devolved to the Scottish Parliament under the devolution settlement. It begins with a brief account of the devolution settlement and summarises the themes emerging from the subsequent chapters. Thereafter, sixteen themed chapters, each dedicated to a discrete area of the law and written by an acknowledged expert in the field, provide critical evaluation of the Scottish Parliament's contribution, highlighting what it has achieved, what it has failed to do and what might be done in the future. This book provides a scholarly evaluation of a number of legislative achievements of Scotland's devolved parliament in its first decade.Less

Law, Lawyers, and Humanism: Selected Essays on the History of Scots Law, Volume 1

John W Cairns

The first of two volumes, this collection of essays on Scots law represents a selection of the most cited articles published by Professor John W. Cairns over a distinguished career in legal history. ... More

The first of two volumes, this collection of essays on Scots law represents a selection of the most cited articles published by Professor John W. Cairns over a distinguished career in legal history. It is a mark of his international eminence that much of his prolific output has been published outside of the United Kingdom, in a wide variety of journals and collections. The consequence is that some of his most valuable writing has appeared in sources which are difficult to locate. This collection covers the foundation and continuity of Scots law from sixteenth- and seventeenth-century Scotland through the eighteenth-century influence of Dutch Humanism into the nineteenth century and the further development of the Scots legal system and profession.Less

Lord Kames: Legal and Social Theorist

Andreas Rahmatian

Lord Kames (Henry Home, 1696–1782) is one of the best known figures of the Scottish Enlightenment by name, and one of the least known in relation to his actual writings. He was a Scottish judge, ... More

Lord Kames (Henry Home, 1696–1782) is one of the best known figures of the Scottish Enlightenment by name, and one of the least known in relation to his actual writings. He was a Scottish judge, jurist, philosopher of legal history, moral philosopher, reformer. He was the example of an erudite Enlightenment man and uomo universale. The purpose of this book is to further the understanding of Lord Kames's thought, his thought processes, his lines of argument, and, most importantly, his conceptual connections of the areas of aesthetics, moral philosophy, social theory (including political philosophy and anthropology), and law. The book seeks to extract the lines of thought between aesthetics, moral philosophy, legal history and law, disciplines which Kames regards as being placed on one underlying conceptual framework. Previous monographs about Kames appeared over forty years ago and were mostly biographies. The rather few specialist studies which have dealt with Kames in detail have essentially interpreted his works in isolation and within one discipline. The present book tries to do justice to the universalist and multi-disciplinary approach of the polymath Lord Kames. It shows Kames's own influences and his underlying framework of moral philosophy which connects aesthetics, political philosophy and ideas of commerce, anthropology, legal history, property, equity and criminal law.Less

A Mixed Legal System in Transition: T. B. Smith and the Progress of Scots Law

Elspeth Reid and David Carey Miller

This book considers the work of Professor Sir Thomas Smith QC (1915–1988) and, through that work, the development of Scots law as a mixed legal system. Smith was a leading figure in the revival of ... More

This book considers the work of Professor Sir Thomas Smith QC (1915–1988) and, through that work, the development of Scots law as a mixed legal system. Smith was a leading figure in the revival of Scots law that began in the 1950s. Well-known internationally as a comparatist, he was the pioneer of the idea of a grouping of mixed legal systems. Yet in Scotland he was a controversial figure, whose advocacy of the civil law tradition was challenged and whose legacy is disputed. This volume is the first sustained attempt to assess Smith's career, and his writing, methodology, ideology and influence. The contributors approach their subject from different angles and in different ways. Two contributors are from other mixed legal systems (South Africa and Louisiana).Less

New Frontiers: Law and Society in the Roman World

Paul J. du Plessis (ed.)

Roman law as a field of study is rapidly evolving to reflect new perspectives and approaches in research. Scholars who work on the subject are increasingly being asked to conduct research in an ... More

Roman law as a field of study is rapidly evolving to reflect new perspectives and approaches in research. Scholars who work on the subject are increasingly being asked to conduct research in an interdisciplinary manner whereby Roman law is not merely seen as a set of abstract concepts devoid of any background, but as a body of law which operated in a specific social, economic and cultural context. Since the mid-1960s, a new academic movement has advocated a “law and society” approach to the study of Roman law instead of the prevailing dogmatic methodology. This “context-based” approach to the study of law and society in the Roman world is an exciting new field which legal historians must address and which is largely unexplored. This interdisciplinary collection focuses on three larger themes which have emerged from these studies: Roman legal thought, the interaction between legal theory and legal practice and the relationship between law and economics.Less

Roman Law before the Twelve Tables: An Interdisciplinary Approach

Sinclair W. Bell and Paul J. du Plessis (eds)

Bringing together a team of international experts from different subject areas – including law, history, archaeology and anthropology – this book re-evaluates the traditional narratives surrounding ... More

Bringing together a team of international experts from different subject areas – including law, history, archaeology and anthropology – this book re-evaluates the traditional narratives surrounding the origins of Roman law before the enactment of the Twelve Tables. Much is now known about the archaic period, relevant evidence from later periods continues to emerge and new methodologies bring the promise of interpretive inroads. This book explores whether, in light of recent developments in these fields, the earliest history of Roman law should be reconsidered. Drawing upon the critical axioms of contemporary sociological and anthropological theory, the contributors yield new insights and offer new perspectives on Rome’s early legal history. In doing so, they seek to revise our understanding of Roman legal history as well as to enrich our appreciation of its culture as a whole.Less

Roman Law, Scots Law and Legal History: Selected Essays

William Gordon

A collection of articles on themes of Roman law, Scots law and legal history arranged in five groups. The first deals with problems in the Roman law of property and obligations, including three ... More

A collection of articles on themes of Roman law, Scots law and legal history arranged in five groups. The first deals with problems in the Roman law of property and obligations, including three articles on transfer by delivery or traditio and others on the controversial date of the lex Aquilia, depositum irregulare, the actio de posito and agency in Roman law. The second ranges over medieval interpretations of Roman texts and their application, producing surprising results, the use or apparent use of Roman law in a particular case and the way in which Roman law has been followed but adapted in relation to servitudes, quasi-delicts and risk in sale, where it has been followed not entirely appropriately in sale of land. The third group takes up a variety of issues in Scottish legal history – discrimination against women, the important law commission chaired by George Joseph Bell and the curious history of the law on variation and discharge of land obligations, Stair’s use of Grotius and other sources and early legal records, including the Registrum referred to in Balfour’s Practicks. The fourth group deals with the general influence of the Civil and Canon law on the law both of England and Scotland and with the influence partly transmitted by French writers. The final group looks at Scotland as a mixed jurisdiction, the Europeanisation of law and the force and limits of legal tradition. The book concludes with a list of the author’s publications up to 2004.Less

Schreber's Law: Jurisprudence and Judgment in Transition

Peter Goodrich

Daniel Paul Schreber, a senior German Judge at the end of the 19th century, author of Memoirs of My Nervous Illness, wanted to become a woman. Diagnosed by Freud, without ever meeting this patient, ... More

Daniel Paul Schreber, a senior German Judge at the end of the 19th century, author of Memoirs of My Nervous Illness, wanted to become a woman. Diagnosed by Freud, without ever meeting this patient, as mad, the Judge was simultaneously made world famous and stigmatised as a lunatic. The diagnosis, taken up again by Lacan, excluded the Judge from any non-clinical reading. Schreber’s Law reverses this diagnosis and takes up the case of the Judge in the current climate of trans advocacy to argue that far from being mad, he was driven by transitional desire and his extra-judicial writings, the Memoirs, some poetry, an essay on legal doctrine should be taken seriously as a radical critique of morbus juridicus, the illness of law. The argument is that the Judge fell ill of law. He was sick of the iron cage of German jurisprudence and so broke out and inscribed a biting critique of the automatism of jurists, of the theology of legal positivism, and of affectless reason of law’s putative science.Less

Scots Law Tales

John Grant and Elaine E. Sutherland (eds)

This book reveals the stories behind some of the most important and memorable cases in Scottish legal history. The cases it covers range from the miscarriage of justice against Oscar Slater to the ... More

This book reveals the stories behind some of the most important and memorable cases in Scottish legal history. The cases it covers range from the miscarriage of justice against Oscar Slater to the Lockerbie trial; from a decomposing snail in a bottle of ginger beer to allegations of high jinks by a prominent politician; from an unplanned pregnancy to the switching off of a life support machine; from McCaig's folly in Oban to the lettering ‘EIIR’ on pillar boxes, and from St Ninian's Treasure in Shetland to allegations of ritual child abuse in Orkney. It brings these leading cases from the Scottish courts to life by capturing the personalities involved, describing the events leading up to each case, detailing what the courts decided and why, and explaining the role that each case played in the development of Scottish law.Less