Judges and Judging in the History of the Common Law and Civil Law: From Antiquity to Modern Times

doi:10.1017/CBO9781139093613

In this collection of essays, leading legal historians address significant topics in the history of judges and judging, with comparisons not only between British, American and Commonwealth experience, but also with the judiciary in civil law countries. It is not the law itself, but the process of law-making in courts that is the focus of inquiry. Contributors describe and analyse aspects of judicial activity, in the widest possible legal and social contexts, across two millennia. The essays cover English common law, continental customary law and ius commune, and aspects of the common law system in the British Empire. The volume is innovative in its approach to legal history. None of the essays offer straight doctrinal exegesis; none take refuge in old-fashioned judicial biography. The volume is a selection of the best papers from the 18th British Legal History Conference.

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Contents

Judges and Judging in the History of the Common Law and Civil Law - Half title page
pp i-ii
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Judges and Judging in the History of the Common Law and Civil Law: From Antiquity to Modern Times - Title page
pp iii-iii
- By Paul Brand, Joshua Getzler
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Copyright page
pp iv-iv
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Contents
pp v-vi
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Preface
pp vii-xiii
- By Joshua Getzler, Paul Brand
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Contributors
pp xiv-xvi
- By Paul Brand, Paul D. Halliday, Phil Handler, Dirk Heirbaut, John H. Langbein, Michael Lobban, Ernest Metzger, Ulrike Muessig, Susan Priest, Rebecca Probert, David J. Seipp, A. J. B. Sirks, Chantal Stebbings, Martin J. Wiener, David V. Williams, Ian Williams
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I - Common law
pp 1-174
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1 - Judges and judging 1176–1307
pp 3-36
- By Paul Brand
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2 - Formalism and realism in fifteenth-century English law:
pp 37-50
Bodies corporate and bodies natural
- By David J. Seipp
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3 - Early-modern judges and thepractice of precedent
pp 51-66
- By Ian Williams*
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4 - Bifurcation and the bench:
pp 67-82
The influence of the jury on English conceptions of the judiciary
- By John H. Langbein
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5 - Sir William Scott and the law ofmarriage
pp 83-101
- By Rebecca Probert
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6 - The politics of English law in thenineteenth century
pp 102-137
- By Michael Lobban*
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7 - Judges andthe criminal law in England 1808–61
pp 138-156
- By Phil Handler
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8 - Bureaucratic adjudication:
pp 157-174
Theinternal appeals of the Inland Revenue
- By Chantal Stebbings
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II - Continental law
pp 175-256
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9 - Remedy of prohibition against Roman judges incivil trials
pp 177-191
- By Ernest Metzger*
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10 - The spokesmen inmedieval courts:
pp 192-208
The unknown leading judges of the customary law and makers of the first Continental law reports
- By Dirk Heirbaut*
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11 - Superior courts in early-modern France, England and the Holy Roman Empire
pp 209-233
- By Ulrike Muessig
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12 - The Supreme Court of Holland andZeeland judging cases in the early eighteenth century
pp 234-256
- By A. J. B. Sirks
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III - Imperial law
pp 257-339
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13 - 11,000 Prisoners:
pp 259-276
Habeas corpus, 1500–1800
- By Paul D. Halliday*
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14 - Some difficulties ofcolonial judging:
pp 277-291
The Bahamas 1886–93
- By Martin J. Wiener
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15 - Australia’s early High Court, the fourth Commonwealth Attorney-General and the ‘Strike of 1905’
pp 292-305
- By Susan Priest*
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16 - Judges and judging in colonial New Zealand:
pp 306-339
Where did native title fit in?
- By David V. Williams
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Index
pp 340-349
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Judges and Judging in the History of the Common Law and Civil Law

From Antiquity to Modern Times

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Contents

Judges and Judging in the History of the Common Law and Civil Law - Half title page
pp i-ii

Judges and Judging in the History of the Common Law and Civil Law: From Antiquity to Modern Times - Title page
pp iii-iii

Copyright page
pp iv-iv

Contents
pp v-vi

Preface
pp vii-xiii

Contributors
pp xiv-xvi

I - Common law
pp 1-174

1 - Judges and judging 1176–1307
pp 3-36

2 - Formalism and realism in fifteenth-century English law:
pp 37-50

3 - Early-modern judges and thepractice of precedent
pp 51-66

4 - Bifurcation and the bench:
pp 67-82

5 - Sir William Scott and the law ofmarriage
pp 83-101

6 - The politics of English law in thenineteenth century
pp 102-137

7 - Judges andthe criminal law in England 1808–61
pp 138-156

8 - Bureaucratic adjudication:
pp 157-174

II - Continental law
pp 175-256

9 - Remedy of prohibition against Roman judges incivil trials
pp 177-191

10 - The spokesmen inmedieval courts:
pp 192-208

11 - Superior courts in early-modern France, England and the Holy Roman Empire
pp 209-233

12 - The Supreme Court of Holland andZeeland judging cases in the early eighteenth century
pp 234-256

III - Imperial law
pp 257-339

13 - 11,000 Prisoners:
pp 259-276

14 - Some difficulties ofcolonial judging:
pp 277-291

15 - Australia’s early High Court, the fourth Commonwealth Attorney-General and the ‘Strike of 1905’
pp 292-305

16 - Judges and judging in colonial New Zealand:
pp 306-339

Index
pp 340-349

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Judges and Judging in the History of the Common Law and Civil Law

From Antiquity to Modern Times

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