Mike Macnair is Tutor in Law at St Hugh's College. Teaching Fields: History of English Law, Roman Law, Land Law, Torts
Displaying 1 - 24 of 24. Sorted by year, then title.
- After identifying a purge of the judicial bench and statutory condemnation of recent judicial decisions in the wake of the revolution of 1688, the chapter asks how far the 'revolution principles' discussed in contemporary political debates impacted on judicial decision-making? It studies the issue through the use, and success or otherwise, of references to Magna Carta and of arguments from 'liberty' in the periods 1660-1688 and 1689-1714, concluding that there was some radicalisation of the judicial bench after 1688 by comparison with 1660-88.ISBN: 978-1-108-42923-8This is a section, rather than a chapter.The volume 'The Formation and Transmission of Western Legal Culture is subtitled '150 Books that Made the Law in the Age of Printing'. My section covers Sir Jeffrey Gilbert's 'The Law of Evidence' (written before 1711, published 1754) which was highly influential on the development of the law of evidence at common law down to the mid-19th century.ISBN: 978-3-319-45566-2This brief piece argues that the Court of Appeal in the early 1950s overthrew a nearly 500 year old dogma of the common law of real property - that a licence to occupy land for a term is, as a matter of law, a lease - for the sake of creating a loophole in the Rent Acts for the benefit of private sector landlords; that the modern cost of the judicial campaign against the Rent Acts is a £23bn per annum cost to the taxpayer; and that the very sharp character of this example supports a 'Griffith-ian' approach to the judicial role, as opposed to a 'separation of powers' approach.'Grand narrative' treatment of the relationship between English medieval uses and early modern trusts and continental fiducia and related concepts, and the associated question of how far the use/ trust was considered proprietary or obligational.This chapter studies judicial references to a general duty of good faith in contracting between c. 1740 and c. 1850; the extent to which these could be conceived as a "legal irritant" (Teubner) or foreign importation, i.e. their antecedents in medieval and early modern English law, and the extent to which these could be considered as parallel with the Roman law system of contracts actionable by actions stricti iuris and bonae fidei; and, more tentatively, the decline in the mid 19th century of references to a general duty of good faith in contracting, leaving 'islands' behind, and its accompaniment, the expansion of 'caveat emptor' from a rule mainly about priorities in purchase with notice of defective title, to a general principle (and the mitigation by later 19th century statutes of uncertainties caused by the new general 'caveat emptor' principle).ISBN: 978-3-8471-0302-8Sham is a late 17th century slang expression which passed into legal usage in the 1690s, first becoming a term of art in the contexts of sham pleas, and a bit later in that of sham bidders at auction. Beyond these contexts it is not apparent that it had become a term of art before the 1850s, though there is some evidence of restrictive interpretation at that period and down to 1875. The related doctrines, which were very extensive and hence can be discussed only very briefly, are the late medieval doctrine of colour in pleading, and its offshoot, the description of actions and transactions some of which might have been called shams as merely colourable; fraudulent conveyances of goods under Statute 3 Hen. VII c. 4 (1487), and of land under the Elizabethan statutes 13 Eliz. I c. 5 (1571) and 27 Eliz. I c. 4 (1585), fraud apparent as an expression for avoidance schemes in revenue and regulatory contexts, and fraud on the law' (fraus legis) [e.g. fraud on the bankrupt laws] . An example of an unrelated doctrine which, however, also produces the result that transactions are not what they seem to be, is the old property law dogma that a licence to occupy land (not consistent with the licensor remaining in occupation) is ipso facto a lease. This dogma was established in the late 15th century, apparently on numerus clausus grounds, and continuously accepted until the early 20th. Its entanglement with sham in Street v Mountford and AG Securities v Vaughan appears to be the result of counsel and judges in those cases not appreciating the age or the scope of the doctrine on the basis of the very summary use in Glenwood Lumber v Phillips.ISBN: 0199685347Roman law experienced concerns about arbitrary decision-making by Praetors. English equity being much more recent, we have much better evidence both for actual arbitrary decision-making by Chancellors, and for concerns about arbitrary decision-making by Chancellors. The remedies adopted, however, are profoundly different. The Romans made the Edict more like the Twelve Tables - a code. The development of English law, in contrast, made equity more like the common law: a system based on the communis opinio of a narrow group of advocates (in the case of modern Chancery equity, the specialist Chancery bar), expressed in the heavy use of precedent and case reporting, modified by particularistic statutes, and governed by collegiate courts of review or (in modern times) appeal. The eventual upshot is that modern Chancery bar equity is perhaps the least equitable, in the Aristotelian ἐðéåßêåéá sense of flexible, branch of English law.Though commonly cited in modern equity books, Lord Nottingham's decision in Coke v Fountaine was only reported by Lord Nottingham himself and was not cited until Swanston printed Lord Nottingham's report in 1827 - though other aspects of the litigation were reported and cited. This chapter examines why this was the case, working through the background to the litigation and its complex multiple character, concluding that Lord Nottingham's decision 'turned on its own facts,' and in so far as it was worth citing, was obscured by the passage in the following year of the Statute of Frauds.ISBN: 9781849461542DOI: 10.1080/03017605.2011.537453The article argues that the 'unlawfulness' of industrial action at common law is the product of judicial bias; and that there are institutional reasons in the structure of the legal system to suggest that such bias is ongoing and will be applied to any legislative frameworkISBN: 0301-7605DOI: 10.1080/03017600903205724This article offers a schematic outline hypothesis of a Marxist approach to freedom of communication. It argues for an approach in terms of freedom of communication, not freedom of speech, of the press, or of expression. The analysis of the political economy of communication under capitalism has to be placed within the frame of historical materialism, therefore beginning with communicative behaviour as an aspect of the human species-being. The contradictions of class societies in general generate contradictory relations to control of communication, and the rise and fall of particular class societies (and conversely the fall and rise of state forms) produces temporal variability in state communication controls. Within this general frame what is specific to capitalist society is the operation of processes of concentration of capital on the means and nodes of communication, producing monopolistic market control. The problems this regime creates for the proletariat as a class pose the problem of freedom of communication in abstraction from class ordering as an immediate, practical present problem for working class organisation.ISBN: 0301-7605ISBN: 0143-6503DOI: 10.1080/03017600600994646ISBN: 1748-8605ISBN: 1-85182-936-9Oxford DNB biographical outline of Sir John Comyns, Chief baron of the Exchequer (revise of existing old DNB text)Oxford DNB biographical outline of Sir Jeffray Gilbert, Chief Baron of the Exchequer (new article)Oxford DNB biographical outline of George Hill, lawyer & eccentric (revise of old DNB text)Oxford DNB biographical outline of LOrd Talbot, Lord Chancellor 1734-37 (new article)ISBN: 90-5095-388-3Reviews three books on the sources for the equity jurisdiction of the Court of Exchequer and considers what these tell us about the evolution of the jurisdiction. Also considers issues in relation to methods of classification for legal-historical statistics.
Land Law, Tort, Legal History
Options taughtLand Law, Tort, Roman Law (Delict - FHS), Principles of Civil Procedure
Events organised by Mike Macnair