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

Drawing on extensive archival and library sources, Karsten explores these collisions and arrives at a number of conclusions that will surprise.

Peter Karsten (Author)

9780521099196, Cambridge University Press

Paperback / softback, published 24 November 2008

584 pages, 44 b/w illus. 4 tables
22.9 x 15.2 x 3.3 cm, 0.84 kg

Between Law and Custom provides a more complete picture of the common law and its cultures than any other work by a long way. An important book, magisterial in sweep and clearly written, this will be a "must read" in many fields including history, colonialism, aboriginal studies, law and legal theory. It addresses the development of both custom and state law in England and its four major settler colonies (including the USA) over a 300 year time period. This 'breakthrough' book will be of enduring importance." Dr. W. Wesley Pue, Professor of Law and Nemetz Chair in Legal History, University of British Columbia

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.

List of illustrations
List of tables
Introduction
Part I. Land: 1. Law versus customs
2. Concribs, manuring, timber and sheep: landlords, tenants and reversioners
3. 'They seem to argue that custom has made a higher law': squatters and proprietors
4. Protecting one's prope'ty: takings, easements, nuisances and trespasses
Part II. Agreements: 5. We have an agreement
6. Work: the formal and informal law of labour contracts
Part III. Accidents: 7. Judicial responses to negligence claims by the British diaspora, 1800–1910
8. Beneath the iceberg's tip
9. Further sorties into the high, middle and low legal cultures of the British diaspora with some conclusions
Cases discussed
Cast of characters
General index.

Subject Areas: Common law [LAFC], Colonialism & imperialism [HBTQ], General & world history [HBG]