Michael Lobban

Legal fictions before the age of reform

Before the era of reform, the common law was replete with fictions. The procedure by which litigation commenced in the common law courts was premised on fictions, while litigants also used fictions to enable themselves to avail themselves of convenient remedies. In allowing litigants to make false statements of facts, the courts allowed the law to develop in new directions, while disguising the fact that it was changing. However, there were also other kinds of fictions, which operated more like rules of law. They included ‘metaphysical’ fictions (as where something which no longer existed was deemed still to be in existence) as well as ‘fictions’ which were in effect metaphors or analogies. This chapter explores the operation of these fictions, as well as the criticisms and defences made of fictions before their nineteenth century reform.

Legitimacy and illegitimacy in nineteenth-century law, literature and history

This innovative collection of essays by prominent scholars from the disciplines of literary studies, history and law explores the many ways in which notions of legtitimacy were shaped and contested in Georgian and Victorian Britain. It probes the difficulties of drawing boundaries between the legitimate and the illegitimate which continued to trouble Victorian society and which were explored in novels such as Charles Dickenss Bleak House and Wilkie Collinss The Woman in White. The essays in this collection show how dilemmas over legitimacy unsettled families by challenging clear lines of inheritence; they also unsettles society, as forgers and imposters defrauded individuals, estates and institutions through widely publicised social performances which fascinated both contemporary culture and called into question the idea of legitimacy itself.

Slavery, Insurance and the Law

In his paper, James Oldham has set out very clearly the issues arising in insurance litigation concerning slave ships in the later eighteenth century. What I propose to do in this short comment is merely to gloss what he has said, adding a few observations of my own. The first thing to point out about this dispute is the obvious one that it concerned two parties who both had a commercial interest in the slave trade. In other words, it was not (unlike say Somerset’s Case), an action which had at its heart a challenge to the morality of slavery. It involved a set of underwriters, who were happy to make a profit from insuring slave ships, resisting a large claim for a loss from an insured party, under circumstances where they doubted whether the claim was covered by the policy. Had there been a loss from an insurrection, the underwriters would have paid up. As James Oldham shows, relatively few cases involving the insurance of slave vessels were litigated. Yet it was standard practice for slave traders to insure their cargo, both against losses by perils of the sea and against loss by rebellion. As Oldham points out, the form of a Lloyd’s insurance policy had been settled, certainly by 1779 when the subscribers to Lloyd’s, acting as a body, settled and enforced a printed form of policy. The perils provided against included perils of the sea, jettisons and ‘all other perils, losses, and misfortunes that ... come to the hurt, detriment or damage’ of the goods. Unlike other written contracts which could not be explained by oral evidence, this standardised and arcane document was permitted to be explained by the custom and practice of merchants. Insurance contracts were to be interpreted according to the intention of the parties and not just according to the words. The underwriters would charge a certain premium, and clauses would be added showing what was not covered. As has been pointed out, where slaves were insured, phrases might be included, such as the one in John Weskett’s Digest, ‘free from loss or average, by trading in boats; and also from average occasioned by insurrection of slaves, if under 10 per cent’. The policy document in the case of the Zong has not been uncovered. However, the pleadings in the case of Gregson v Gilbert do state its content. Since the policy was underwritten by Liverpool merchants it was not in exactly the same shape as a London policy. Indeed, it was common in the eighteenth century for policies to be issued in other towns using

Thomas Hobbes and the common law

Hobbess political thought provokes a perennial fascination. It has become particularly prominent in recent years, with the surge of scholarly interest evidenced by a number of monographs in political theory and philosophy. At the same time, there has been a turn in legal scholarship towards political theory in a way that engages recognisably Hobbesian themes, for example the relationship between security and liberty. However, there is surprisingly little engagement with Hobbess views on legal theory in general and on certain legal topics, despite the fact that Hobbes devoted whole works to legal inquiry and gave law a prominent role in his works focused on politics. This volume seeks to remedy this gap by providing the first collection of specially commissioned essays devoted to Hobbes and the law

Introduction: Spurious Issues

At the beginning of the Third Epoch of Wilkie Collins’s novel, The Woman in White (1859–60), the hero, Walter Hartright, writes of himself and his accomplice, Marian Halcombe:

Austin and the Germans

John’s Austin’s work divides into two parts: the Province of Jurisprudence Determined, which set out his command-based theory of law, and his Lectures on Jurisprudence, which analyzed the ‘necessary notions’ which he felt existed in every developed system of law. These two parts reflect different influences on Austin. While his command theory developed ideas found in the work of the English writers, Hobbes and Bentham, his analytical jurisprudence owed much to German writers in the Pandectist tradition. This article explores the relationship between Austin’s work and the German writers who influenced him (particular Niels Nikolaus Falck), and demonstrates that the tensions in Austins’ work between the command theory of the Province and the rights-centred organization of the Lectures derive from the contradictory influences he drew on.

History, Law and Language; or, What Can Foxes Teach Hedgehogs?

A glance at the range and depth of Brian Simpson’s publications shows that he knew a great deal about very many things. He was enthusiastic for empirical research which emphasised complexity, and he was suspicious of general theories which ignored or simplified the evidence. He was happy to characterise himself as a ‘fox’—and he reminded us that foxes do not ‘develop any overarching grand theory’. He preferred to leave it to the intelligence of his readers to figure out the messages he was trying to convey in his work. Nonetheless, all of his stories had a point. They were themselves interventions in theoretical debates. He was also the author of a widely-admired article on ‘The Common Law and Legal Theory’, in which he used his knowledge of the history of English law to challenge Hart’s positivist vision, contributing here more directly to jurisprudential debate. In his later work, Simpson did not elaborate directly on the views set out in that piece. But if he did not spell out precisely what a study of the history of the common law could teach legal theorists, his comments on and criticisms of Hart’s The Concept of Law in his last work do show how important his theoretical insights were. Simpson’s anecdotal—and occasionally catty—style reveals that he did not think all that highly of the Oxford philosophers of the 1950s who so inspired Hart. Nonetheless, he did acknowledge—even if a little grudgingly—the importance of Hart’s contribution in exploring why the question ‘what is law’ had to be asked, and examining what asking this question could teach us. Hart was (as Simpson puts it) something of a hedgehog. He was, and remained, a philosopher, largely uninterested in the humdrum details of the common law or its workings. But he was interested in some of the core jurisprudential issues of his age. For Hart, before one could ask the question, ‘what is law’, one had to consider three recurrent questions:

The politics of English law in the nineteenth century

In this collection of essays, leading legal historians address significant topics in the history of judges and judging, with comparisons not only between British, American and Commonwealth experience, but also with the judiciary in civil law countries. It is not the law itself, but the process of law-making in courts, that is the focus of inquiry. Contributors describe and analyse aspects of judicial activity, in the widest possible legal and social contexts, across two millennia. The essays cover English common law, continental customary law and ius commune, and aspects of the common law system in the British Empire. The volume is innovative in its approach to legal history. None of the essays offer straight doctrinal exegesis; none take refuge in old-fashioned judicial biography. The volume is a selection of the best papers from the 18th British Legal History Conference.

Habeas Corpus: from England to Empire

The ‘Great Writ’ of habeas corpus has long had an iconic status as the ‘writ of liberty’ which ensured that no person could be detained in prison without being put to trial by a jury of his peers. According to the traditional version, popularised by Whiggish constitutional writers from the late seventeenth century onwards, the English constitution as embodied in the common law had, since time immemorial, striven to protect the fundamental rights of Englishmen and women, which included the right to personal liberty. The common law had supplied the writ of habeas corpus, which secured the provision of Magna Carta, that no freeman be imprisoned save by the judgment of a jury of his peers. In the course of the seventeenth century, the Whig version ran, kings with an absolutist bent sought to undermine ancient liberties, by claiming prerogative powers to imprison without trial, and by appointing supine judges who would not protect peoples liberties. It took the triumph of Parliament to restore and perfect them. For William Blackstone, one of the key statutes which secured ‘the complete restitution of English liberty’ was the Habeas Corpus Act of 1679, ‘that second magna carta ’. As Blackstone put it: ‘ Magna carta only, in general terms, declared, that no man shall be imprisoned contrary to law: the habeas corpus act points him out effectual means, as well to release himself, though committed even by the king in council, as to punish all those who shall thus unconstitutionally misuse him.’

The Chancellor, the Chancery, and the History of Law Reform

As both James Oldham and Joshua Getzler show in their perceptive and helpful comments, much work remains to be done on the history of both the nineteenth-century Chancery and the wider law reform movement. My discussion of the inconclusive nature of the political debate about Eldons arrears leads Oldham to ask whether the Chancellor was really overburdened and whether the appointment of the Vice Chancellor was as counterproductive as many contemporaries claimed. On the first of these issues, the data show that while Eldon was in general able to deal with the caseload before him, it was in the 1810s—when “by a series of most important decisions, [he] systematized the law of bankruptcy”—that a dramatic arrear in appeals developed (see Figure 5), which contributed to the political pressure on him in the following decade. Oldham shows from a survey of his notebooks that Eldon heard roughly fifty cases a year from 1801–13; while according to official returns, in the 1820s, he heard more than forty appeals each year. But between 1813 and 1819, the number fell to about twelve cases a year. On the second issue, the data show that the creation of a Vice Chancellor did have an impact, but a relatively modest one. Lacking the distractions of the Great Seal, he could hear more original business; and cases set down and heard in Chancery increased by about 40 percent in the decade and a half after his appointment. While the number of appeals also increased, both numerically and proportionally, they remained at manageable levels.