Mike Macnair is Tutor in Law at St Hugh's College. Teaching Fields: History of English Law, Roman Law, Land Law, Torts


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  • M R Macnair, 'On Reducing Undue Trust in Judges: Or, Against the Modern Doctrine of Precedent' (2020) 31 King's Law Journal 41
    DOI: 10.1080/09615768.2020.1741146
    This article appears in KLJ's special issue on the judicial role in democracy. It suggests that the power of individual judges and small groups of judges to legislate for class and party-political purposes cannot be wholly eliminated, but that it might be partially restrained: by modifying the modern conception of precedent in terms of a bureaucratic hierarchy, in the direction of aspects of the system of sources of English law before the mid to late 19th century watershed, which gave less dispositive force to individual decisions other than those of the House of Lords, which were understood as exercises of parliamentary sovereignty.
  • M R Macnair, 'English Limitation Reforms and Controversies 1934-2016' in Harry Dondorp, David Ibbetson and Eltjo J.H. Schrage (eds), Limitation and Prescription: a comparative legal history (Duncker & Humblot 2019)
    Though Prof. Joshua Getzler did not want to be not named as a co-author of this chapter, he contributed substantially to the final version.
    This is a chapter in volume 33 of the series Comparative Studies in Continental and Anglo-American Legal History, on limitation and prescription. This chapter was written to provide some comparability with the discussions of the modern evolution of continental prescription in the volume. It provides a limited overview of the origins of the Limitation Act 1939 and the evolution between that Act and 2016 (when the chapter went to the editors) of disputed areas of limitation law in relation to land title, to the 'latent damage' problem in tort, and to defamation. It suggests that repeated reform processes have not achieved legal stability in the field.
    ISBN: 978-3-428-85626-8; 978-3-428-15626-9
  • M R Macnair, 'Institutional Taxonomy, Roman Forms and English Lawyers in the 17th and 18th Centuries' in Pierre Bonin, Nader Hakim, Fara Nasti, Aldo Schiavone (ed), Pensiero Giuridico Occidentale e Giuristi Romani: Eredita e Genealogie (G. Giappichelli Editore 2019)
    The book will also be appearing in a French edition.
    The use of the Gaian Institutional taxonomy to 'map the law' came to the fore in early modern legal writing, in England most famously in Blackstone's Commentaries. But there were predecessors to Blackstone in this approach going back to the early 1600s. There were also rival approaches: alphabetised writing was as much used on the continent as in England; the analysis of the law by organising it under (alleged) Euclidean axioms, the regulae iuris, though most fashionable earlier, persisted into the late 18th century and beyond; and there was a different system of taxonomy, developed in the later medieval common law, on the basis of the distinct procedural characteristics of claims, and the Register of Writs as a foundational authority, which also persisted into the early 19th century. The modern uniformitization of civil procedure has had the result of the loss of the basic value judgement which lay behind the old common law system, that is, that judicial attention and the availability of delays have to be rationed by the nature of claims in order to create a legal system which works at reasonable levels of cost and delay for 95% of parties, even if it disadvantages 5%.
    ISBN: 978-88-921-1933-8
  • M R Macnair, 'Length of Time and related equitable bars 1660-1760' in Harry Dondorp, David Ibbetson and Eltjo J.H. Schrage (eds), Limitation and Prescription: a comparative legal history (Duncker & Humblot 2019)
    This is a chapter in a volume on limitation and prescription in the series Comparative Studies in Continental and Anglo-American Legal History (vol. 33). This chapter explores prescription, limitation, laches, acquiescence and 'length of time' as defences in the courts of equity in the century 1660-1760, being the first century of regular law reporting in these courts. Equity was outside the scope of the 1624 Statute of Limitations, and the courts therefore decided cases either by analogy with this statute, or on general principles (including reliance on regulae iuris/ maxims drawn remotely from civil and canon law sources).
    ISBN: 978-3-428-85626-8; 978-3-428-15626-9
  • M R Macnair, 'Intersectionalism, the highest stage of western Stalinism?' (2018) 46 Critique - Journal of Socialist Theory 541
    DOI: 10.1080/03017605.2018.1529083
    This article argues that ‘intersectionality’ is at the end of the day derived from the People’s Front policy of the 1930s Comintern, as modified by late 1960s–1970s ‘soft Maoism’, and then adopted in the late 1970s–1980s by the political representatives of US capital as an ideological colouration for the growth of economic inequality under financialisation. In the result, the project is self-defeating, giving way to ‘white identity politics’ and similar formations.
    ISBN: 0301-7605 (Print) 1748-8605 (Online)
  • M R Macnair, 'Review of 'The Acts of James II's Irish Parliament of 1689'' (2018) 77 Cambridge Law Journal 420 [Review]
  • M R Macnair, 'Revolution Principles and the Revolution Bench' in Catharine Macmillan and Charlotte Smith (eds), Challenges to Authority and the Recognition of Rights: from Magna Carta to Modernity (Cambridge University Press 2018)
    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: 978-1-108-42923-8
  • M R Macnair, ''Gilbert - The Law of Evidence'' (2017) Springer The Formation and Transmission of Western Legal Culture 283
    This 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: 978-3-319-45566-2
  • M R Macnair, 'Can Judges be Trusted with the Common Law?' in Richard Ekins and Graham Gee (eds), Judicial Power and the Left (Policy Exchange 2017)
    This 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.
  • M R Macnair, 'Equitable protection of legal professional privilege: a commentary' in P.G. Turner (ed), Equity and Administration (Cambridge University Press 2016)
  • M R Macnair, 'Good Faith in English Contract Law before 1850' in Jan Hallebeek, Martin Schermaier, Roberto Fiori, Ernest Metzger, Jean-Pierre Coriat (ed), Inter cives necnon Peregrinos: essays in honour of Boudewijn Sirks (V&R unipress 2014)
    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: 978-3-8471-0302-8
  • M R Macnair, 'Review of Mark Wonnacott, 'The History of the Law of Landlord and Tenant in England and Wales'' (2014) 73 Cambridge Law Journal 172 [Review]
  • M R Macnair, 'Sham: early uses and related and unrelated doctrines.' in Edwin Simpson and Miranda Stewart (eds), Sham Transactions (OUP 2013)
    ‘Sham’ 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: 0199685347
  • M R Macnair, 'Arbitrary Chancellors and the problem of predictability' in Willem Zwalve & Egbert Koops (ed), Law and Equity: Roman Law and Common Law approaches (Brill 2013)
    Roman 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.
  • M R Macnair, 'Coke v Fountaine (1676)' in Charles Mitchell & Paul Mitchell (ed), Landmark Cases in Equity (Hart 2012)
    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: 9781849461542
  • M R Macnair, 'Review of John Tiley ed., Studies in the History of Tax Law volumes 3 and 4' [2012] British Tax Review 676 [Review]
  • M R Macnair, 'Free Association versus Juridification' (2011) 39 Critique 53
    DOI: 10.1080/03017605.2011.537453
    The 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 framework
    ISBN: 0301-7605
  • M R Macnair, 'Review of Paul D Halliday, Habeas Corpus: From England to Empire' (2011) 29 Law & History Review 629 [Review]
  • M R Macnair, 'Marxism and Freedom of Communication' (2009) 37 Critique 565
    DOI: 10.1080/03017600903205724
    This 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: 0301-7605
  • M R Macnair and J Getzler, 'The firm as an entity before the Companies Acts' in Paul Brand, Kevin Costello & W.N. Osborough (ed), Adventures of the Law: Proceedings of the Sixteenth British Legal History Conference, Dublin 2003 (Four Courts Press 2005)
    ISBN: 1-85182-936-9
  • M R Macnair, 'Comyns, Sir John (c.1667–1740)' in (ed), Oxford Dictionary of National Biography (Oxford University Press 2004)
    Oxford DNB biographical outline of Sir John Comyns, Chief baron of the Exchequer (revise of existing old DNB text)
  • M R Macnair, 'Gilbert, sir Jeffray (1674–1726)' in (ed), Oxford Dictionary of National Biography (Oxford University Press 2004)
    Oxford DNB biographical outline of Sir Jeffray Gilbert, Chief Baron of the Exchequer (new article)
  • M R Macnair, 'Hill, George (c.1716–1808)' in (ed), Oxford Dictionary of National Biography (Oxford University Press 2004)
    Oxford DNB biographical outline of George Hill, lawyer & eccentric (revise of old DNB text)
  • M R Macnair, 'Lord King and Lord Talbot: An Eighteenth Century Attempt to reduce delay in Equity and its general lessons' in C.H. van Rhee (ed), The Law's Delay : Essays on Undue Delay in Civil Litigation (Intersentia 2004)
    ISBN: 90-5095-388-3
  • M R Macnair, 'The Court of Exchequer and Equity' (2001) 22(3) Journal of Legal History 75
    Reviews 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.

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Research Interests

Land Law, Tort, Legal History

Options taught

Land Law, Tort, Roman Law (Delict - FHS), Principles of Civil Procedure

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