Law, history, and the social sciences: Intellectual traditions of late nineteenth- and early twentieth-century Europe

The purpose of this essay is to describe and analyse the historiography of law and the economy in Europe in the late nineteenth and earlier twentieth centuries. Three major themes or approaches can be identified within this intellectual history. The first is a sociological interest in the nature and evolution of modernity in society. Here the contested concept of ‘modernity’ is used to mean the emergence of a society and culture where personal identities and social practices and norms are no longer determined primarily by communal tradition but are to some degree chosen. The second approach is political, and centres on the emergence of the state as a chief framework for national and communal life, replacing local, religious, and kinship institutions. The third approach is economistic, and searches for the legal, governmental, and institutional factors that revolutionized the productive capacity of the economy and led to European domination of the world by 1900

Rumford Market and the genesis of fiduciary obligations

Peter Birks's writings on English legal history, which stand alongside his studies of classical Roman law, are a model for historians of the law. His rationalization of the modern law of unjust enrichment drew from a deep knowledge of the historical sources of that law. This chapter examines the origins and contours of fiduciary law, using Peter's theory of fiduciary obligation as a counterpoint, and drawing on his legal history as an inspiration

Financial crisis and the decline of fiduciary law

This chapter identifies the cutting back of fiduciary obligations by courts and legislatures as a possible contributory cause of the financial crisis that erupted in 2008. It argues that a restoration of classical fiduciary duties of loyalty and care to clients can help improve the health of the financial system and mitigate the next crises. During the "Great Moderation" asset managers used a permissive legal environment to take high fees but, by the time that the crisis had come, had moved their clients’ wealth into assets which crashed in value, whilst insulating themselves from liability for poor judgment and care in making such investments. The law needs to provide a satisfactory response to such behaviour, addressing the problems of uncertainty, asymmetric information and expertise, and conflicts of interest. These necessary additional duties would create something very similar to the fiduciary law we already have, but which we no longer use. This chapter describes the attenuation of modern fiduciary law over the past forty years, and suggests how the power of this body of law may freshly be deployed in the future

Use of force in protecting property

A long-standing common-law policy holds that anyone may lawfully use force to repel or arrest a criminal threatening property, and a fortiori that force may be used to defend one’s own property. But there are limits to these powers. In cases where some amount of violence is justified but excessive force is used, some common-law jurisdictions will deny any defence to murder. Killing through excessive force is neither justified nor excused. Other jurisdictions will allow a partial defence, excusing from the fullest penalty and reducing the offence to manslaughter or unlawful homicide, on the ground that the actor should be punished for a grievous miscalculation. By analyzing the relationships between persons and property and investigating the historical development of self-help doctrines, the principles defining excessive force here may be reduced to four. First, property cannot easily be conceived as a value worth protecting by force where there is no accompanying threat to the person. Second, the law may nonetheless see a presumptive identity between an owner’s person and his property which is external to his person, so that violent defence of property becomes justified even without a threat to bodily or personal safety. Third, intentionality and purpose play an important role in attributing legal blame for excessive force in protecting property, and the test of allowable quantum of force is not objective. Finally, the legal and ethical issues are transformed when we move from individual to collective property. Judgments concerning state and international legality regarding excessive force may derive only limited guidance from the contours of criminal law and private law. Yet, much of international conflict today is carried out by private actors who do not wear uniforms or wrap themselves in the shield of state immunity, and the domestic legal dimension thus begins to have purchase on issues of excessive force in war and communal conflict