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

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.

Table of Contents:
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.

Review :
"...will provide a wealth of material for the historian." Allen Horstman, Albion College, Historian "Sweeping and compelling....[Karsten] has compiled a wealth of fascinating information, nicely categorized...and for that readers owe him thanks." Perspectives on Political Science "A unique and convincing picture that will be an inspiration and a model for future comparative legal histories." History "Here is another monument to empirical research, Karsten's signature as a legal historian." American Historical Review "This book will become a classic in legal history and in comparative studies of settler societies. Remarkable for its mastery of detail and stunning in its scope and span, the book covers some three hundred years of history, and an astonishing range of fields of law. It compares the British diaspora societies of South Africa, North America, Australia, Canada and New Zealand (amongst others) to establish that certain patterns of legal adaptation occur in new societies when the laws they inherit from the Old World rub up against the local practices of settlers and indigenous peoples. It will profoundly alter our views about the influence of transplanted institutions and ideas on the 'neo-Europes'". Miles Fairburn, University of Canterbury, New Zealand "Karsten's admirably researched and infectiously enthusiastic history of the English common law diaspora fills a long-recognized gap in law and history studies. Scholars in diasporic sites have long compared local law with the former center, but Karsten provides a socially contextual comparison of those sites with each other, noting the relevance of both different circumstances and varying kinds of tension between formal law and popular expectations to the production of differing common law regimes. Between Law and Custom opens new possibilities in the legal history field." Ian Duncanson, La Trobe University 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