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: 9780521792837
• ISBN10: 0521792835
• Format: Hardcover
• Copyright: 2002-03-18
• 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	xiii
List of Tables	xvi
Introduction	1	(4)
What I Ask about Formal Law	5	(9)
What I Ask about Informal ``Law''	14	(3)
A Map of the Territory	17	(1)
Acknowledgments	18	(5)
PART ONE. LAND
Law versus Customs	23	(96)
Commoners, Customary Property Rights, and the Law in the British Isles	24	(8)
New and Imported Customary Law in the Lands of the British Diaspora	32	(17)
The Central Contest: The Law of England and of the Responsible Government of the Lands of the British Diaspora Confront Customary Property Rights of the Aboriginal Inhabitants of North America and the Antipodes	49	(53)
The Power of Popular Norms and Frontier Justice: Redskins and Settlers, Aborigines and Squatters	102	(15)
Summary	117	(2)
Corncribs, Manuring, Timber, and Sheep: Landlords, Tenants, and Reversioners	119	(27)
The Formal Law	119	(9)
The Informal Law of Landlords and Tenants	128	(16)
Summary	144	(2)
``They Seem To Argue that Custom Has Made a Higher Law'': Squatters and Proprietors	146	(42)
The Formal Law of Squatters, Improvements, Riparian Rights, and Title	146	(18)
Possession by the Firelock: The Informal Law of Squatters and Proprietors	164	(22)
Summary	186	(2)
Protecting One's Property: Takings, Easements, Nuisances, and Trespasses	188	(81)
Franchises	188	(2)
Takings	190	(23)
Ancient Lights	213	(1)
Pollution Nuisances	214	(3)
Trespasses	217	(46)
Summary	263	(6)
PART TWO. AGREEMENTS
We Have an Agreement: The Formal and Informal Law of Sales, Third-Party Beneficiary, Common Carrier, and Contingency-Fee Contracts	269	(29)
Sales Contracts	269	(20)
Two Contracts for Services: The Law of Common Carrier and Contingency Fee Agreements	289	(8)
Summary	297	(1)
Work: The Formal and Informal Law of Labor Contracts	298	(65)
The Formal Law	299	(27)
I Quit! - You're Fired!: The Informal Law of Labor Contracts	326	(34)
Summary	360	(3)
PART THREE. ACCIDENTS
Judicial Responses to Negligence Claims by the British Diaspora, 1800-1910	363	(88)
Rules in English and U.S. Courts	363	(1)
Negligence Law and CANZ Jurists	364	(29)
Res Ipsa Loquitur and the Prima Facie Case: Plaintiff Proof of Negligence When Defendant Was a Neighbor, Stranger, or Common Carrier	393	(32)
Hurt on the Job: CANZ Jurists and the Assumption of Risk and Common Employment Rules	425	(24)
Summary	449	(2)
Beneath the Iceberg's Tip: Personal Injury Suits, Out-of-Court Settlements, and Trial Court Awards: The Real Law of Accidents	451	(47)
The Settlement Process	451	(17)
The Alternative Route for Injured Workers: Worker's Compensation	468	(2)
Awards for Personal Injury or Wrongful Death	470	(17)
The Generosity of Juries and Trial-Court Judges Compared	487	(1)
High-Court Jurists and Jury Awards: A Case of High and Low Legal Cultures in Direct Contact with One Another	488	(3)
Diaspora Jurists, English Jurists, and Rules Regarding Damage Awards	491	(4)
Summary	495	(3)
Further Sorties into the High, Middle, and Low Legal Cultures of the British Diaspora, with Some Conclusions	498	(43)
The Common Law: High Legal Culture	498	(20)
Statutory Innovations	518	(5)
Attorneys and Magistrates: Middle Legal Culture	523	(6)
The Common Law Versus ``common law'': The Collision of High and Low Legal Cultures	529	(12)
Cases Discussed	541	(3)
Cast of Characters	544	(10)
General Index	554