Between Law and Custom: 'High' and 'Low' Legal Cultures in the Lands of the British Diaspora - The United States, Canada, Australia, and New Zealand, 1600–1900

by Peter Karsten

• ISBN13: 9780521099196
• ISBN10: 0521099196
• Edition: 1st
• Format: Paperback
• Copyright: 2008-11-24
• Publisher: Cambridge University Press

Summary

When British authorities established 'settler' colonies in North America and the Antipodes (New Zealand, Australia, South Africa, Fiji) from the early seventeenth to the late nineteenth centuries, they introduced law through parliamentary statutes and Colonial Office oversight, and they dispatched governors and judges to the colonies. These jurists set aside some aspects of English Common Law to meet the special conditions of the settler societies, but the 'Responsible Governments' that were eventually created in the colonies and the British immigrants themselves set aside even more of the English law, exercising 'informal law' - popular norms - in its place. Law and popular norms clashed over a range of issues, including ready access to land, the property rights of aboriginal people. the taking of property for public purposes, master-servant relationships and crown/corporate liability for negligent maintenance and operation of roads, bridges and railways. Drawing on extensive archival and library sources in England, the United States, Canada, Australia and New Zealand, Karsten explores these collisions and arrives at a number of conclusions that will surprise.

Table of Contents

List of illustrations

List of tables

Introduction

Land

Law versus Customs

Concribs, Manuring, Timber and Sheep: Landlords, Tenants and Reversioners

'They seem to argue that custom has made a higher law': Squatters and Proprietors

Protecting One's Prope'ty; Takings, Easements, Nuisances and Trespasses

Agreements

We Have an Agreement

Work: The Formal and Informal Law of Labour Contracts

Accidents

Judicial Responses to Negligence Claims by the British Diaspora, 1800-1910

Beneath the Iceberg's tip

Further sorties into the High, Middle and Low Legal Cultures of the British Diaspora with Some Conclusions

Cases Discussed

Cast of characters

General Index

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