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No description available.

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No description available.

By the eleventh century, the conduct of jurisprudence in the Mālikī school of law – one of four that would survive in Sunni Islam – was predicated on a legal system that comprised a particular set of sources: mainly, the positive legal rules posited by Mālik b. Anas (d. 179/795) and a few of his subsequent adherents, and ḥadīth and Qur᾽an. The structure of the legal system was one in which these sources were conceived to cohere analogically. By analogy, they could be correlated to each other and thereby systematically rationalized, and new rules to govern new cases generated from, and added to, them. This study recovers the antecedents of that system and describes the main stages of the process by which Mālikī jurisprudence acquired the systematic character of its classical form. It provides a re-assessment of Mālik’s own jurisprudence and of the role of precedent and ḥadīth in the Medinese tradition, arguing that the origins of systematic thought in the Mālikī tradition are to be sought in Mālik’s retrospective rationalizations by analogy of rules pronounced nonetheless from arbitrary considerations. I distinguish the mode of analogy that Mālik employed to this effect (tashbīh) from that which his Iraqi contemporaries and the later classical schools employed ostensibly to derive rules from sources ab initio (qiyās). Mālik, I contend, in fact opposed qiyās because it threatened to undermine the sufficiency of juristic discretion by imposing systematic constraints on the personal reasoning of authoritative arbiters. I show how subsequently the Mudawwanah, a work compiled by Mālik’s ninth-century followers in the Islamic West, promoted the formation of a legal system by subjecting Mālik’s teaching and his students’ ramifications of it to a Ḥanafite design by which they became susceptible of analysis along analogical lines. The system implicit in the Mudawwanah is structurally but not yet materially classical. It remained for the Western Mālikīyah, through their encounters in the East with Shāfi῾ite legal theory in the later tenth century, to absorb into the fabric of their system, which so far comprised only the positive rules of the tradition itself, the revealed sources from which, by qiyās, al-Shāfi῾ī (d. 204/820) in the early ninth century had insisted the law be derived. As background to this theory of systematization, I also address inter alia the following questions, which bear in one way or another on our appreciation of Mālik’s jurisprudence and/or the extent to which we may suppose it to be accessible in the recensions of the Muwaṭṭa᾽: the transmission of the vulgate in ninth-century Andalus; the reception of Mālik’s doctrine in Iraq (as perceived through the Muwaṭṭa᾽ of al-Shaybānī – in particular, the editorial principles that informed its composition – and the Ḥujjah ῾alá ahl al-Madīnah); other recensions and the possibilities for a chronology of Muwaṭṭa᾽āt; representation of Mālik’s doctrine in the Ikhtilāf Mālik wa-al-Shāfi῾ī; the way in which Mālik transmitted the Muwaṭṭa᾽ as an explanation of variation between its recensions.

No description available.

In modern scholarship, the concept of equity is often assimilated with that of Aristotelian epieikeia, a process which serves to correct rules when, though their wording undoubtedly applies to a case, yet the outcome would be unjust, or the legislator would have never wanted the rule to be applied to such a case. My thesis deals with the early-modern origins of the association of equity and epieikeia in legal scholarship, and of its consequences for the doctrinal development of equity in the sixteenth and seventeenth century. I begin by showing that medieval legal writings on equity were almost completely unconcerned with epieikeia, and that the latter was only developed by philosophers and theologians. Legists and canonists developed a concept of equity that was unrelated - indeed mostly incompatible - with judicial discretion or the emendation of written rules. Thus, throughout the Middle Ages, there was almost no interaction between the writings of civil and canon lawyers on equity, and those of theologians on epieikeia. In the second chapter of my thesis, I show that the introduction of epieikeia in legal scholarship was the result of the influence of humanistic philology over the writings of humanist jurists, and argue that it caused the majority of early-modern authors to depart from medieval scholarship on equity, re-modelling instead equity as a doctrine of interpretation of the law beyond its letter in accordance with the intentions of the legislator. The final part of my thesis argues that the development of equity as epieikeia in legal scholarship broke down the barrier that had hitherto divided theological and legal writings on equity. Indeed, from the late sixteenth century onwards, legal and theological writings on equity were connected to such an extent that many later authors treated these two branches of scholarship as belonging to one, equally authoritative body of learning on the same topic.

This thesis aims to chart and explain the evolution of credit practices and the law’s reaction to them vis-à-vis the protection of borrowers between 1700 and 1974. The cat-and-mouse game played out between the credit industry and the legislature, and the longstanding tension between the credit needs of the commercial community and those of the small private borrower are of central importance. This thesis is primarily historical rather than theoretical; it seeks to describe and explain legal developments over time. But, in order to illuminate this development, the law will be viewed through the lens of a simple analytical framework based on the dichotomy between public law regulation, on the one hand, and the private law of contract, on the other. Viewed through this lens, it should be possible to position the law at any given stage of its development at a particular point on a scale of ‘regulatoriness’. The framework within which these rules were originally developed was, of course, neither intentionally nor self-consciously theoretical, but that is not to say that a theoretical framework lacks utility in legal historical inquiry.

This thesis explores the connection between legal history and social history through an analysis of commercial, property and criminal laws, and their practical operation, in Nevada County, California from 1849 to 1860 and the Gympie region, Queensland from 1867 to 1880. By explaining the operation of a broad range of laws in a local context, this thesis seeks to provide a more complete picture of the operation of law in each community and identify the ways in which the law influenced social, political and economic life. The history of law cannot be separate from its social, economic, geographic, and political context. Each of these factors influenced both the text of the laws, and their practical application. In the Gympie region and Nevada County, the law had the effect of, in various guises, safeguarding private property, promoting short term productivity, and enforcing public morality. This was often at the expense of individual autonomy, the physical environment and the rights of minority groups. This was not a result of the operation of one dominant force in the lawmaking process. Instead, government regulation, government inactivity, informal customs, and judicial lawmaking worked together to create a legal order on either side of the Pacific. The comparison reveals that the same pattern of tensions gave the legal regime in each region a substantially similar shape. At another level, this thesis demonstrates that two regions, although on different continents and separated by a 20 year time gap, were nevertheless linked across time and space. By comparing the regions, this thesis demonstrates the possibilities of a more international legal history. While there were certainly differences between each region, these differences should not obscure the substantial similarities, and the fact that an analysis of these similarities illuminates the shared influences between the regions. By conceiving of legal regimes as being shaped by shifting patterns tensions, defining the pattern of those tensions, and then connecting those patterns across national borders it is possible to write a more complex, interesting, and transnational version of legal history.

This thesis is an exercise in the historical use of legal analysis. It illuminates the social construction of gender in an era of changing social mores, by relating rape doctrines to demographic, economic, social, and cultural changes. Changes in the rape law of early Industrial Britain (1800-1860) are examined as: 1). results of ideological changes since the eighteenth century; and 2). causes of the creation of Victorian sexual culture. The ideology of Separate Spheres for men and women led to a fearful sexual regime which prescribed chaperoning to ensure womens chastity. Law made womens avoidance of being alone outside, where they could become prey of strange men, a requirement for sexual respectability, because rape became more difficult to prove.<p>The 1817 rural Midlands murder case of Rex versus Abraham Thornton caused popular controversy because the judge said physical evidence of brutal sex was not inconsistent with consensual sex: the woman could have been persuaded by violence: reasonable doubt on the rape meant the accused was presumed to lack a motive to kill the deceased. Thornton was influential on law and gender ideology. Consent to forcethe idea that a woman could meaningfully consent to sex after violencewas extended in later rape cases. Secondly, even though the public reacted against Thorntons acquittal, popular culture interpreted it to support Stranger Dangerthat women risk rape by strangers while out alone, and should remain at home unless accompanied by trusted men. Consent to Force and Stranger Danger worked at different levels of the social hierarchy. But both served to extend Separate Spheres to working class women.<p>Law undermined traditional mores which had supported the North West European marriage systemlate marriage, small age difference between brides and grooms, nuclear family households, and numerous adolescents working in others homes as servants, resulting in low rates of premarital births during long courtships. Young commoners had managed a sexual balancing act by engaging in sexual exploration while refraining from vaginal intercourse. Late marriage, very low illegitimacy, and high rates of prenuptial conceptions of first marital births, resulted from young couples engaging in sexual intercourse only when conditions for marriage were right. Young men had to marry pregnant sweethearts, because communities could identify putative fathers.<p>Industrialization threw the North West marriage system out of balance: young men became more mobile and able to evade forced marriage. It also became more difficult for young men, especially artisans, to achieve the status traditionally associated with marriage. This sexual crisis was exacerbated by upper class libertinism spreading to commoner men. The Thornton case promoted libertinism among all men, to allow men of higher class to approach lower class women for prostitution.<p>The moral denigration of lower class women under rape law after Thornton was the flip side of the association of marriage with making wives consent to sex upon demand by their husbands, under Fraternal Patriarchy. Categorizing women as bad girls or good girls became central to rape law, yet illusory. Lower class women persuadable by force were subjected to similar constraints as wives: both were to think selflessly about fulfilling mens needs. Bourgeois wives, like domestic servants, entered lifelong contracts to serve heads of households upon demand. Domestic torts based upon the property right of masters of households to service provided by wives and children, as well as servants, linked treatment of different classes of women. <p>But because lower class women were not marriageable to elite men, their premarital chastity was not considered as valuable. Working class womens gender value was discounted; working class men were emasculated as potential heads of households, by economic instability interfering with marriage, the displacement of mens authority over wives to their employers, and the 1834 New Poor Law, which proposed removing wives and children from working class husbands and fathers when they went onto relief. De-gendering of lower class women and men was reflected in the difficulty that lower class men had in obtaining damages for domestic torts. Privileging of the bourgeois with respect to gender contributed to the failure of feminist and labour movements to cement a political alliance. Industrial-era rape doctrines were ultimately applied to all women rape complainants, regardless of class status, and became the basis for the anti-victim rape laws which second wave feminists analyzed and opposed. Modern rape law still presents women with similar challenges, based upon rape myths like Stranger Danger.