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Full-Text Articles in Legal History

Property Rights In Land, Agricultural Capitalism, And The Relative Decline Of Pre-Industrial China, Taisu Zhang Feb 2011

Property Rights In Land, Agricultural Capitalism, And The Relative Decline Of Pre-Industrial China, Taisu Zhang

Student Scholarship Papers

Scholars have long debated how legal institutions influenced the economic development of societies and civilizations. This Article sheds new light on this debate by reexamining, from a legal perspective, a crucial segment of the Eighteenth and Nineteenth Century economic divergence between England and China: By 1700, English agriculture had become predominantly capitalist, reliant on “managerial” farms worked chiefly by hired labor. On the other hand, Chinese agriculture counterproductively remained household-based throughout the Qing and Republican eras.

The explanation for this key agricultural divergence, which created multiple advantages for English proto-industry, lies in differences between Chinese and English property rights regimes ...


The Xinfang Phenomenon: Why The Chinese Prefer Administrative Petitioning Over Litigation, Taisu Zhang Aug 2008

The Xinfang Phenomenon: Why The Chinese Prefer Administrative Petitioning Over Litigation, Taisu Zhang

Student Scholarship Papers

In recent years, the Chinese public, when facing disputes with government officials, hav preferred a non-legal means of resolution, the Xinfang system, over litigation. Some scholars explain this by claiming that administrative litigation is less effective than Xinfang petitioning. Others argue that the Chinese have historically eschewed litigation and continue to do so habitually. This paper proposes a new explanation: Chinese have traditionally litigated administrative disputes, but only when legal procedure is not too adversarial and allows for the possibility of reconciliation through court-directed settlement. Since this possibility does not formally exist in modern Chinese administrative litigation, people tend to ...


Treaties And Executive Agreements A Reply, Edwin Borchard Jan 1945

Treaties And Executive Agreements A Reply, Edwin Borchard

Faculty Scholarship Series

The authors of the articles under reply, Messrs. McDougal and Lans, have, like McClure, essayed to show that the treaty and the executive agreement are interchangeable, and, since executive agreements are simpler to conclude, they advocate disregarding as obsolete the treaty-making power, requiring, as it does, the consent of two thirds of the Senate, and substituting for it the use of the executive agreement. In that demand they differ radically from the constitutional conclusions which the writer, as well as many other students of the subject, have reached. To give their proposal a more “democratic” tinge, the authors propose what ...


Minimum Standard Of The Treatment Of Aliens, Edwin Borchard Jan 1940

Minimum Standard Of The Treatment Of Aliens, Edwin Borchard

Faculty Scholarship Series

Its note of August 3, 1938, the Mexican Government, by its Minister of Foreign Affairs, contested the right of the United States to demand compensation for the agricultural lands of American citizens expropriated by Mexico since 1927. It asserted that the countries vigorously maintained “The principle of equality between nationals and foreigners, considering that the foreigner who voluntarily moves to a country... in search of a personal benefit, accepts in advance, together with the advantages which he is going to enjoy, the risks to which he may find himself exposed. It would be unjust that he should aspire to a ...


Relation Between International Law And Municipal Law, Edwin Borchard Jan 1940

Relation Between International Law And Municipal Law, Edwin Borchard

Faculty Scholarship Series

Recent events on this continent make it seem appropriate once more to discuss the much – debated question of the relation between international law and municipal law. For one school, the dualists, municipal law prevails in case of conflict; for the other school, the monists international law prevails. There are two special features about the debate which warrant mention: first, that while the disputants do not widely differ in the ultimate solution of practical problems, they do differ considerably in their major premises and in the resulting theories; and second, that the attempt of various countries on occasion to escape the ...


Neutrality, Edwin Borchard Jan 1938

Neutrality, Edwin Borchard

Faculty Scholarship Series

Before 1914, it was hard to find much difference of opinion among American citizens about the proper policy of the United States in relation to foreign wars or even foreign affairs. That policy, with respect to Europe, was dictated by geographical factors and by a colonial and continental history that left little room for debate. Detachment from Europe's political entanglements, non-intervention in its internal affairs, and neutrality in its wars were the keynotes. After 1898 the acquisition of Asiatic possessions turned America to a Pacific orientation marked by uncertainty and the assumption of unnecessary risks. The desire to play ...


Protection Of Citizens Abroad And Change Of Original Nationality, Edwin Borchard Jan 1934

Protection Of Citizens Abroad And Change Of Original Nationality, Edwin Borchard

Faculty Scholarship Series

Precedent and time are the creators and preservers of customary law. So strong is the force of habit in human behavior that man in doubt or distress instinctively turns to past experience to see how his forbears dealt with similar problems. The law, which is the cement holding together the social structure, is, in its evolution as a conservative force, of necessity driven to search for precedents and to profit by them in building certainty and thereby security. Without landmarks there is no system; and for the very reason that international law is deficient in its lack of a legislature ...


Strength And Weakness Of The New International Court, Edwin Borchard Jan 1922

Strength And Weakness Of The New International Court, Edwin Borchard

Faculty Scholarship Series

For an adequate understanding of the origin, jurisdiction and functions of the newly established court of international justice at the Hague, it will be necessary to revert to the two Hague Conferences of 1899 and 1907 and to examine the organization of the Permanent Court of Arbitration at the Hague created and developed at: those Conferences. The characteristic feature of the Court of Arbitration as distinguished from the new Permanent Court of Justice lies in the fact that the personnel of the former consists of an eligible list or panel, of which there are now some one hundred and twenty ...


Some Lessons From The Civil Law, Edwin Borchard Jan 1916

Some Lessons From The Civil Law, Edwin Borchard

Faculty Scholarship Series

The purpose of this brief article is not so much to set forth any specific institutions disclosed by a study of the civil law, as to point out some of those defects of our own system which are accentuated by comparison with the civil law, defects due to the methods rather than the substance of the common law. There is no desire to urge such a radical and perhaps impossible step as the substitution of civil law methods for our own; but in the consideration of plans for the improvement of our law, it may be profitable to observe that ...


Jurisprudence In Germany, Edwin Borchard Jan 1912

Jurisprudence In Germany, Edwin Borchard

Faculty Scholarship Series

The Library of Congress is now undertaking the publication of a series of guides to foreign law. One of the objects of the enterprise is to acquaint the practitioner and the legislator with the legal institutions of foreign countries. Another of its objects is to show the evolution and present development of juristic thought abroad, and the extent to which a virile philosophy of law and a sound conception of the relation between law and social science have succeeded in creating a jurisprudence which has proved far more efficient than the common law in responding to the needs of present ...


Acquisitive Prescription: Its Existing World-Wide Uniformity, Charles P. Sherman Jan 1911

Acquisitive Prescription: Its Existing World-Wide Uniformity, Charles P. Sherman

Faculty Scholarship Series

The recent appeal of Lord Justice Kennedy1 for unified laws
covering the various fundamental transactions of business and of
domestic relations is not a mere dream, but rests on a solid foundation
of fact,-namely the too-often overlooked agreement as to
essentials which exists in modern law throughout the world.
So thoroughly have the principles of Roman law survived or
been re-absorbed in all modern jurisprudence that a movement
for unification of the private laws of the world is a natural result
of this situation. The world of today is witnessing a virtual
economic unity, and also something approaching a ...