Conscience, Equity and the Court of Chancery in Early Modern England

Conscience, Equity and the Court of Chancery in Early Modern England
Author: Dennis R. Klinck
Publisher: Routledge
Total Pages: 328
Release: 2016-05-23
Genre: History
ISBN: 1317161955

Judicial equity developed in England during the medieval period, providing an alternative access to justice for cases that the rigid structures of the common law could not accommodate. Where the common law was constrained by precedent and strict procedural and substantive rules, equity relied on principles of natural justice - or 'conscience' - to decide cases and right wrongs. Overseen by the Lord Chancellor, equity became one of the twin pillars of the English legal system with the Court of Chancery playing an ever greater role in the legal life of the nation. Yet, whilst the Chancery was commonly - and still sometimes is - referred to as a 'court of conscience', there is remarkably little consensus about what this actually means, or indeed whose conscience is under discussion. This study tackles the difficult subject of the place of conscience in the development of English equity during a crucial period of legal history. Addressing the notion of conscience as a juristic principle in the Court of Chancery during the sixteenth and seventeenth centuries, the book explores how the concept was understood and how it figured in legal judgment. Drawing upon both legal and broader cultural materials, it explains how that understanding differed from modern notions and how it might have been more consistent with criteria we commonly associate with objective legal judgement than the modern, more 'subjective', concept of conscience. The study culminates with an examination of the chancellorship of Lord Nottingham (1673-82), who, because of his efforts to transform equity from a jurisdiction associated with discretion into one based on rules, is conventionally regarded as the father of modern, 'systematic' equity. From a broader perspective, this study can be seen as a contribution to the enduring discussion of the relationship between 'formal' accounts of law, which see it as systems of rules, and less formal accounts, which try to make room for intuitive moral or prudential reasoning.

Defences in Equity

Defences in Equity
Author: Paul S Davies
Publisher: Bloomsbury Publishing
Total Pages: 437
Release: 2018-05-03
Genre: Law
ISBN: 1509921028

This book is the fourth in a series of essay collections on defences in private law. It addresses defences to liability arising in equity. The essays range from those adopting a mainly doctrinal perspective to others that explore the law from a more philosophical perspective. Some essays concentrate on specific defences, while others are concerned with the links between defences, or with how defences relate to the structure of the law of equity generally. One aim of the book is to shed light on equitable doctrines by analysing them through the lens of defences. The essays offer original contributions to this complex, important but neglected field of scholarly investigation. The contributors – judges, practitioners and academics – are all distinguished jurists. The essays are addressed to all of the major common law jurisdictions.

Private Law and Power

Private Law and Power
Author: Kit Barker
Publisher: Bloomsbury Publishing
Total Pages: 321
Release: 2017-01-12
Genre: Law
ISBN: 1509906010

The aim of this edited collection of essays is to examine the relationship between private law and power – both the public power of the state and the 'private' power of institutions and individuals. It describes and critically assesses the way that private law doctrines, institutions, processes and rules express, moderate, facilitate and control relationships of power. The various chapters of this work examine the dynamics of the relationship between private law and power from a number of different perspectives – historical, theoretical, doctrinal and comparative. They have been commissioned from leading experts in the field of private law, from several different Commonwealth Jurisdictions (Australia, the UK, Canada and New Zealand), each with expertise in the particular sphere of their contribution. They aim to illuminate the past and assist in resolving some contemporary, difficult legal issues relating to the shape, scope and content of private law and its difficult relationship with power.

Constructive and Resulting Trusts

Constructive and Resulting Trusts
Author: C Mitchell
Publisher: Bloomsbury Publishing
Total Pages: 685
Release: 2010-03-03
Genre: Law
ISBN: 1847317596

Constructive and resulting trusts have a long history in English law, and the law which governs them continues to develop as they are pressed into service to perform a wide variety of different functions, for example, to support the working of express trusts and other fiduciary relationships, to allocate family property rights, and to undo the consequences of commercial fraud. However, while their conceptual flexibility makes them enormously useful, it also makes them hard to understand. In the twelve essays collected in this volume, the authors shed new light on various aspects of the law governing constructive and resulting trusts, revisiting current controversies, bringing new historical material to the fore, and offering new theoretical perspectives.

Inventing American Exceptionalism

Inventing American Exceptionalism
Author: Amalia D. Kessler
Publisher: Yale University Press
Total Pages: 563
Release: 2017-01-10
Genre: Law
ISBN: 0300224842

A highly engaging account of the developments not only legal, but also socioeconomic, political, and cultural that gave rise to Americans distinctively lawyer-driven legal culture When Americans imagine their legal system, it is the adversarial trial dominated by dueling larger-than-life lawyers undertaking grand public performances that first comes to mind. But as award-winning author Amalia Kessler reveals in this engrossing history, it was only in the turbulent decades before the Civil War that adversarialism became a defining American practice and ideology, displacing alternative, more judge-driven approaches to procedure. By drawing on a broad range of methods and sources and by recovering neglected influences (including from Europe) the author shows how the emergence of the American adversarial legal culture was a product not only of developments internal to law, but also of wider socioeconomic, political, and cultural debates over whether and how to undertake market regulation and pursue racial equality. As a result, adversarialism came to play a key role in defining American legal institutions and practices, as well as national identity.

Modern Historians on British History 1485-1945 (Routledge Revivals)

Modern Historians on British History 1485-1945 (Routledge Revivals)
Author: G.R. Elton
Publisher: Routledge
Total Pages: 496
Release: 2009-12-10
Genre: History
ISBN: 113698920X

The twenty-five year period following the Second World War saw an enormous expansion of activity in the writing of the history of modern Britain, and with that expansion a major transformation of the state of knowledge in many parts of the area. First published in 1970, this Revivals reissue, which includes an extensive coverage of books and a reasonable selection of articles, endeavours both to survey the work done and to reduce it to some comprehensible order. It indicates achievements and probable lines of development, and collects the materials that have grown around the main controversies. Omitted are local history (in the main) and the history of empire and commonwealth, except where the latter really arises out of the affairs of the mother country. There are special sections on social history, the history of ideas, Scotland and Ireland.

Major Legal Systems in the World Today

Major Legal Systems in the World Today
Author: René David
Publisher: Simon and Schuster
Total Pages: 612
Release: 1978
Genre: Comparative law
ISBN: 0029076102

A significant introduction to the study of comparative law and a notable scholarly work, Major Legal Systems in the World Today analyzes the general characteristics which lie behind the development of the four principal legal systems of the world: the Civil law, the Common law, the Socialist law (primarily Soviet), and those based on religious or philosophical principles (Muslim, Hindu, Chinese, Japanese, and African). Providing unique insights into the spirt of each legal family, the book presents a total view of the historical foundation and the sources and structure of the law in each system.