Dissertations / Theses on the topic 'Common law'
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Laurindo, Marja Mangili. "Entre common law e civil law." reponame:Repositório Institucional da UFSC, 2017. https://repositorio.ufsc.br/xmlui/handle/123456789/179920.
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Dissertação (mestrado) - Universidade Federal de Santa Catarina, Centro de Ciências Jurídicas, Programa de Pós-Graduação em Direito, Florianópolis, 2017.Made available in DSpace on 2017-10-03T04:21:46Z (GMT). No. of bitstreams: 1 348552.pdf: 14136770 bytes, checksum: 8b8b640521518567f41d5a953f437668 (MD5) Previous issue date: 2017
Esta dissertação objetiva compreender as condições socioeconômicas em que se dão e as implicações das transformações do direito brasileiro no que se refere à adoção de procedimentos comuns à tradição estrangeira da common law. Disso, se obteve que, em um cenário econômico neoliberal de direito flexível, a análise do discurso politizador e moralizante do judiciário coloca à luz uma série de problemas decorrentes de um novo paradigma interpretativo do Direito. Se para o positivismo jurídico a norma é o limite, para o neoconstitucionalismo o limite está no senso moral do julgador. Nesse estado de crescente indeterminação, adotam-se no Brasil instrumentos estrangeiros como os ?precedentes?; além disso, instituições internacionais como o Banco Mundial lançam diretrizes por meio de relatórios como o Doing Business que indicam que, em termos de eficiência, o sistema de common law é superior ao de civil law. Isso, claro, ao mesmo tempo em que vigora, em países como os Estados Unidos, uma teoria herdeira do Realismo Jurídico, a Law and Economics, que defende a união entre direito e economia em um nível nunca visto antes. A liberdade interpretativa permitida por esse conjunto de fatores rompe a ideia da necessidade de um direito rígido, o que será analisado, em termos de implicações, em seu contexto socioeconômico, qual seja o do neoliberalismo.
Abstract : This dissertation aims to understand the socioeconomic conditions in which occur and the implications of the transformations of Brazilian law regarding the adoption of procedures common to the foreign common law tradition. From this, it was obtained that in a neoliberal economic scenario of flexible law, the analysis of the politicizing and moralizing discourse of the judiciary brings to light a series of problems arising from a new interpretative paradigm of Law. If, for legal positivism, the norm is the limit, for neoconstitutionalism the limit lies in the moral sense of the judge. In this state of growing indeterminacy, foreign instruments are adopted in Brazil as the "precedents"; in addition, international institutions such as the World Bank have issued guidelines through reports such as Doing Business which indicate that the common law system is superior to civil law in terms of efficiency. This, of course, at the same time that, in countries such as the United States, an inheritance theory of Legal Realism, Law and Economics, is defending the union between law and economy on a level never seen before. The interpretive freedom allowed by this set of factors breaks the idea of the need for a rigid Law, which will be analyzed, in terms of implications, in its socioeconomic context, namely neoliberalism.
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Fox, David Murray. "Tracing money at common law." Thesis, University of Cambridge, 1995. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.361717.
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Juratowich, Ben. "Retroactivity and the common law." Thesis, University of Oxford, 2007. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.439764.
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Moreham, Nicole Anna. "Privacy and the common law." Thesis, University of Cambridge, 2004. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.615821.
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Caenegem, Raoul C. Van. "El common law es diferente." Derecho & Sociedad, 2015. http://repositorio.pucp.edu.pe/index/handle/123456789/118546.
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Ong, Burton T. E. "Competition law and the common law of unfair competition." Thesis, University of Oxford, 2011. http://ora.ox.ac.uk/objects/uuid:0bcf048f-12a6-495d-a7ae-66b307d296df.
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Competition between trade rivals in a marketplace operating within a common law-based legal system is regulated primarily by two fairly distinct branches of the law: the prohibitions against anti-competitive conduct imposed by the competition law framework, and the common law restraints against acts of “unfair competition” that attract liability under the economic torts. This dissertation aims to critically examine both these legal frameworks and provide an integrated account of how these branches of the law distinguish between lawful and unlawful modes of competitive conduct. By scrutinising the doctrinal and policy foundations that underlie each of these legal frameworks, common thematic strands that may not be immediately apparent to lawyers working exclusively in either field will be exposed, while fundamental differences between their respective inner workings will also be uncovered in the process. Engaging in such a comparative exercise will facilitate a deeper understanding of the contrasting objectives and jurisprudential approaches associated with each legal framework which, in turn, sheds some light on the nature of their relationship with each other and the extent to which legal developments in one field ought to influence, or be influenced by, the other. Besides evaluating how and why the common law economic torts operate differently from the competition law prohibitions in circumscribing the liberty of individual competitors to inflict economic harm upon their trade rivals, this dissertation will also analyse selected types of commercial conduct which are regarded as lawful under one framework but unlawful by the other, and contrast them with scenarios which could attract overlapping legal liability under both legal frameworks. In addition, this dissertation will explore a selection of legal issues arising from the doctrinal interaction between these areas of the law that may confront the courts as these two legal frameworks continue to develop in tandem with each other.
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Bennett, Thomas Daniel Cynvelin. "Imagining privacy in the common law : overcoming the barriers to a common law tort of intrusion." Thesis, Durham University, 2018. http://etheses.dur.ac.uk/12523/.
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This thesis is concerned with the relevance of imagination to the task of judicial elaboration of the common law. It brings this issue into focus by concentrating its analysis on the “intrusion lacuna” in domestic tort law’s protection of privacy interests. The thesis proposes that this lacuna, whereby the common law lacks a tort of intrusion into privacy, can be explained by identifying two “barriers” to the adoption of such a tort. A “formal” barrier inhibits development by causing the courts to believe that the development of a novel privacy tort would amount to an illegitimate exercise in judicial activism. A “semantic” barrier arises out of the difficulty in conceptualising the amorphous term “privacy”, which – it is often (wrongly) thought – is not amenable to sufficiently tight definition to drive the development of heads of liability apt to protect it. The presence of both barriers indicates the dominance of a particularly restrictive mode of thinking in judicial decisions on privacy in recent years. This strongly resembles a mode of thinking associated with the left hemisphere of the human brain. Where this mode of thinking dominates, attentiveness to context is significantly diminished. The result is a privacy jurisprudence that possesses little awareness of the broader legal and social context within which it takes place. Crucially, this left hemisphere-dominated mode of thinking inhibits the exercise of imagination in our privacy jurisprudence. The thesis argues that only by engaging in a more imaginative jurisprudence can the two barriers be overcome. To that end, it constructs a working understanding of “legal imagination” which makes plain the core role that attentiveness to context plays in creative endeavours, including developing the common law. It concludes that, if an intrusion tort is to be developed by the courts, they will first have to adopt this more imaginative jurisprudence.
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Landskron, Rolf. "Common-law and civil-law legal families : a misleading categorisation." ePublications@bond, 2008. http://epublications.bond.edu.au/theses/landskron.
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This thesis examines common-law and civil-law jurisdictions in order to find differences between them. These differences are then being qualified as either relevant or irrelevant for the categorisation of individual jurisdictions. This reflects the argument that only features occurring in only one of the legal families can be relevant when categorising jurisdictions. Only such features can be, from the author’s point of view, specific and typical for their legal family and inherent features of them.The first thing to be considered under this premise is the respective sources of law (Chapter 1). These are in civil-law jurisdictions traditionally statutes and in commonlaw jurisdictions predominantly courts’ decisions. There are, of course, statutes also in common-law jurisdictions and previous courts’ decisions play an important role also in civil-law systems. The differences are not inherent. Furthermore, there are fundamental legal concepts, that is important concepts underlying the respective rules. These concepts may explain differences between the rules. The examination of sources of law, altogether, does not reveal any distinguishing factors.Chapters 2–5 discuss the issue of attitudes of common-law and civil-law judges to statutory interpretation. Chapter 2 examines the respective methods of statutory interpretation. This does not reveal any differences as to common-law and civil-law judges’ attitudes; for instance, greater adherence of common-law judges to the literal meaning of rules arguably does not exist. As shown in Chapter 3, this is true also in the area of Criminal Law under the special safeguards this subject provides. Chapter 4 asserts terminology causes differences between the systems; this is true even in case of identical terminology which is sometimes being interpreted in a diametrically different way. Moreover, differences can also be compensated for elsewhere in the legal system. Altogether, Chapter 4 does not reveal any inherent differences between the systems. As Chapter 5 shows, there is an ongoing process of convergence between common-law and civil-law systems, which means the categorisation into legal families becomes even less plausible.Chapter 6 shows that the categorisation into legal families is not only incorrect but also highly misleading and that there are numerous scholarly statements relying incorrectly on the family concept. The proposition (Chapter 7) is that it may nevertheless be feasible to structure comparative-law texts according to the wellknown legal families, as these show a common historical background. However, for conducting research into particular foreign legal rules (micro-comparative research), the family concept becomes a misleading starting-point. Insofar the concept should be abandoned or, at least, used only together with an appropriate warning.
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Perrin, Benjamin. "An emerging international criminal law tradition : gaps in applicable law and transnational common laws." Thesis, McGill University, 2006. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=101824.
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This thesis critically examines the origins and development of international criminal lave to identify the defining features of this emerging legal tradition. It critically evaluates the experimental approach taken in Article 21 of the Rome Statute of the International Criminal Court, which attempts to codify an untested normative super-structure to guide this legal tradition.International criminal law is a hybrid tradition which seeks legitimacy and answers to difficult questions by drawing on other established legal traditions. Its development at the confluence of public international law, international humanitarian law, international human rights law and national criminal laws has resulted in gaps in difficult cases with no clear answers. These lacunae have been filled by recourse to judicial discretion, exercised consistent with Patrick Glenn's theory of transnational common laws, and by privileging one of the competing aims of international criminal law: enhancing humanitarian protection versus maximizing fairness to the accused.
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Brown, C. W. "A common law of international adjudication." Thesis, University of Cambridge, 2005. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.596968.
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This dissertation examines aspects of procedure and remedies in the jurisprudence of international courts and tribunals. The dissertation’s central thesis is that there is increasing similarity in the application of procedure and remedies by international courts, and that this represents the emergence of a ‘common law of international adjudication’. The emerging common law of international adjudication owes its existence in part to the broad powers that international courts can exercise over their procedure and remedies. These powers encompass not only those which are expressly conferred on them, but also inherent powers, which international courts can exercise to fill lacunae in their constitutive instruments and rules of procedure. Several specific aspects of the adjudication process are examined to discern the existence of commonality in international judicial practice. These are: aspects of the rules of evidence; the power to grant provisional measures; the power to interpret and revise judgements and awards; and the availability of remedies. The analysis suggests that international courts are increasingly referring to the practice of other international tribunals, leading to substantial commonality on each of these questions, except where their constitutive instruments provide for special rules. The thesis developed in this dissertation has practical and theoretical implications. While it has not been possible to consider all aspects of international adjudication, the analysis nonetheless suggests that similar results may be found in other areas, and that international courts can devise common approaches to new procedural issues. It also suggests that international courts do not operate as self-contained regimes, but rather regard themselves as forming part of a community of international courts. In this sense, the emergence of a common law of international adjudication has positive implications for the development of an international legal system.
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Yap, Po Jen. "Constitutional dialogue in common law Asia." Thesis, University of Cambridge, 2014. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.648886.
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Austin, Raymond D. "Navajo Courts and Navajo Common Law." Diss., The University of Arizona, 2007. http://hdl.handle.net/10150/196081.
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The Navajo Nation courts use ancient Diné (Navajo) customs and traditions or Navajo common law to decide cases. While the concepts called Navajo common law are free-flowing, communal, and egalitarian, the forum where they are used, the Navajo Nation court, is adversarial and uses adopted American court rules to strain traditional concepts to relevancy. Incorporating Navajo common law into American-styled court litigation is a difficult process. Navajo common law is rooted in Navajo philosophy,while the forum of its application is of Anglo-American design. The Navajo judges,nonetheless, have developed methods using adopted American rules of evidence, particularly the expert witness rules and the judicial notice doctrine, to bring Navajo common law into Navajo court litigation.This work focuses on three foundational Navajo doctrines, hozho (harmony, balance and peace), ke (kinship solidarity), and k'ei (clanship system), to analyze how the Navajo judges use Navajo common law to resolve legal problems. The three doctrines are first examined within the Navajo cultural context and then the case method of analysis is employed to explain how the Navajo judges engage the incorporation process. The three doctrines are not laws that can be applied to legal issues, but their derivative norms and values are applied as laws in the Navajo Nation courts.When the Navajo Nation courts use Navajo common law in their written decisions, they are at once preserving Navajo culture, language, spirituality, and identity for future Navajo generations. When the Navajo people use Navajo common law in their courts and in the overall operations of their government, they are not only exercising sovereignty the Navajo way, but also nation-building the Navajo way. The methods used to incorporate Navajo common law into modern Navajo government can serve as a model for American Indian tribal governments and indigenous peoples around the globe who desire to resurrect their ancient ways of governance. So long as American Indians and indigenous peoples retain their cultures, languages, spiritual traditions, and identities,they have in place traditional frameworks that can be used to solve modern problems.
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Mugisha, Julius P. K. "Recognition of common-law spousal relationships in Canadian family law." Thesis, McGill University, 2003. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=80943.
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Common-law spousal relationships have become increasingly common with a growing number of Canadians electing to enter into them. This thesis appreciates the injustices suffered by common-law spouses during and at the termination of their spousal relationships, and reinforces the view that the denial of marital property benefits dishonors the dignity of common-law spouses. Common-law spouses experience similar needs as their married counterparts when the relationship ends. Most of the current functions of marriage can be fulfilled within common-law spousal relationships and should more appropriately be called functions of the family.Both Canadian courts and the legislatures have acknowledged and responded to the injustices that often flow from power imbalances in unmarried persons' families and have thereby given increased recognition to common-law spousal relationships. They have taken stock of the fact that by not recognizing the rights of common-law spouses in Canada on the basis of their marital status is an affront to justice. Legislatures have also enacted various statutes and have amended existing ones to extend certain rights to common-law spouses.
The various ways in which the rights of common-law spouses have been recognized in Canada will be examined and discussed, in particular the remedial notion of constructive trust which is imposed by courts to prevent injustice and unjust enrichment. It is argued this notion of constructive trust has proven effective, especially in cases where property is being divided after a long-term intimate relationship. Common-law spouses have advanced constitutional challenges in their quest to benefit from marital benefits and protections in their relationships since it is argued that both relationships are functionally the same.
Finally, this thesis suggests lessons that can be learned from the Canadian developments of recognizing common-law spouses. It also concludes by examining similar developments that have taken place in other countries of Europe and Africa.
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Gibbons, Robert C. "Florida's common-law corporation sole an historical, civil law, and canon law analysis /." Theological Research Exchange Network (TREN), 2005. http://www.tren.com.
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Icardi, Aldo. "Las Cortes de Equidad y el Sistema de la "Common Law"." Pontificia Universidad Católica del Perú, 2015. http://repositorio.pucp.edu.pe/index/handle/123456789/115918.
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Huang, Jiefang. "The common interest principle in space law /." Thesis, McGill University, 1985. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=64496.
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Perry, Stephen Robert. "Adjudication, legal theory and the common law." Thesis, University of Oxford, 1987. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.253825.
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Wells, Elizabeth. "Common law reporting in England 1550-1650." Thesis, University of Oxford, 1994. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.260105.
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Rotherham, Craig Ian. "Conceptions of property in common law discourse." Thesis, University of Cambridge, 1996. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.627588.
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Bonnard, Isabelle. "La Notion d'unconscionability en droits anglais et américain des contrats." Paris 1, 1988. http://www.theses.fr/1988PA010299.
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La notion d'unconscionability est l'un des moyens permettant, aujourd'hui, de sanctionner les abus engendrés par les contrats d'adhésion. Elle porte à la fois sur la formation du contrat en ce qui concerne les problèmes posés par les inégalités de puissance contractuelle, et sur le contenu du contrat pour ce qui est des clauses abusives. C'est une notion de common law, que l'on peut retrouver dans le droit américain et dans le droit anglais. Bien que commune à ces deux systèmes, elle s'y présente cependant de différents façons. S'appliquant à tous les contrats aux Etats-Unis, elle est de portée beaucoup plus restreinte en Angleterre où elle n'a toujours pas été reconnue comme un principe d'application générale. Son étude permet de mettre en lumière certaines différences quant à l'évolution du droit des contrats de ces deux paysThe notion of unconscionability is one of those devices used today to sanction the abuses of adhesion contracts. It affects both the formation of the contract (correcting the inequalities of bargaining power) and the sustance of that contract (it focuses here on abusive clauses). It is a notion of common law, found in both American and English law. Although common to these two legal systems, it is found in different forms. In the united states, it applies to all contracts. On the other hand, in England, its use is much more limited : here it has yet to be recognized as a principle of general application. By studying it we highlight some of the differences between the evolution of contract law in these two countries
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Lind, Göran. "Common law marriage : a legal institution for cohabitation /." New York [u.a.] : Oxford Univ. Press, 2008. http://bvbr.bib-bvb.de:8991/F?func=service&doc_library=BVB01&doc_number=016728851&line_number=0001&func_code=DB_RECORDS&service_type=MEDIA.
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Rosenwasser, Elior. "Good faith -- civil, common and maritime." Thesis, McGill University, 2003. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=81232.
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The growing recognition of obligation of Good Faith in contract law has only increased the debate surrounding this concept and its ramification on contract. The uneasiness about Good Faith should be attributed to the fact that Good Faith is an open norm or vague standard, which in practice means judicial law making. Furthermore, Good Faith suggests the teleological method of interpretation of contract and legislation in determining the rights and the duties of the parties to a contract. This, it is argued, would contradict the importance of certainty, private autonomy and commercial stability. The thesis presents the development and functions of Good Faith, in different jurisdiction, civil and common. It elaborates the arguments and counterarguments in the Good Faith debate from the context of major civil law and common law features. This will be mainly illustrated by maritime law related contracts. Finally, Good Faith in a possible uniform transnational maritime law will be discussed.
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Weiß, Norman. ""Our common humanity" : die asiatische Menschenrechtscharta." Universität Potsdam, 2000. http://opus.kobv.de/ubp/volltexte/2010/4414/.
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Worby, Samantha Jane. "Kinship in thirteenth century England : the Canon Law in the Common Law." Thesis, University College London (University of London), 2006. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.425687.
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Link, Mathias. "Possession, Possessio und das Schicksal des Common Law : der Besitzrechtsstreit im Common Law in der zweiten Hälfte des 19. Jahrhunderts /." Frankfurt am Main [u.a.] : Lang, 2003. http://www.gbv.de/dms/spk/sbb/recht/toc/364177950.pdf.
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Flach, Carl Joseph. "Common error and Canon 1111 [section] 1." Online full text .pdf document, available to Fuller patrons only, 2000. http://www.tren.com.
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O'Connor, Paul. "Common law rights for people injured at work /." Title page, synopsis and table of contents only, 2002. http://web4.library.adelaide.edu.au/theses/09LR/09lro187.pdf.
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Richter, Markus Johannes. "Common Law Begriffe und Eigentumsrechte der kanadischen Indianer /." Münster [u.a.] : Lit, 2003. http://www.gbv.de/dms/spk/sbb/recht/toc/366331507.pdf.
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Sprince, Alan. "Stress at work : can the common law cope?" Thesis, Liverpool John Moores University, 2004. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.402859.
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Sandison, Craig R. K. "Legality and the Scots common law of crimes." Thesis, University of Cambridge, 1994. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.296709.
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Decock, Wim. "Morals are the guiding principle for common law." Pontificia Universidad Católica del Perú, 2014. http://repositorio.pucp.edu.pe/index/handle/123456789/116211.
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Starting from fifty citations from primary sources, this article tries to summarize a recent doctoral thesis on the transformation of traditional ius commune contract law in moral theological treatises from the early modern Catholic world. Firstly, it will be shown how theologians borrowed from the Romano-canon legal tradition to develop moral doctrine. Secondly, this contribution will try to demonstrate that the traditional conception of contract was fundamentally changed in the works of the theologians. The conclusion will be that theologians developed a doctrine of contracts which redefined contract on the basis of the autonomy of the will, without remaining insensitive to the political, moral and spiritual context in which the homo viator tried to live a God-pleasing life.Este artículo pretende ofrecer, empleando medio centenar de fuentes primarias, un resumen de mi tesis doctoral sobre la transformación del derecho de los contratos del ius commune en tratados de teología moral en los albores del mundo católico moderno. Se trata, en principio, de mostrar cómo los teólogos recurrieron a la tradición legal romano-canónica para desarrollar sus doctrinas morales. Luego, esta contribución detallará cómo los teólogos cambiaron sustancialmente la concepción tradicional del contrato, al redefinir el ius commune a partir de la moral cristiana y el derecho natural. La conclusión es que los teólogos elaboraron una doctrina de los contratos que los redefinió sobre la base de la autonomía de la voluntad, sin olvidar el contexto político, moral y espiritual en el que el hombre peregrino trató de vivir una vida consagrada al Señor.
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Marais, Albertus Johannes. "Simulation discussed : tax avoidance in the common law." Master's thesis, University of Cape Town, 2012. http://hdl.handle.net/11427/10897.
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Includes bibliographical references.The simulation doctrine has, in the law of taxation, always played the role of being SARS' remedy in the common law, vis-a-vis its legislated cohorts, viz. both the specific and general anti-avoidance provisions contained in the various tax statutes. Building on the principles established in Zandberg v Van Zyl, Dadoo Ltd and others v Krugersdorp Municipal Council and Commissioner of Customs and Excise v Randles Brothers & Hudson Ltd, the test which emerged and has been applied since, is broadly recognised as being that as formulated by Watermeyer JA in Randles, being that where the parties to a contract truly intended to act in accordance with the tenor of the agreement, irrespective of what their purpose for entering into that transaction was, that contract cannot be a simulated one. However, the Supreme Court of Appeal judgment in CSARS v NWK Ltd has necessitated that the principles applied previously be revisited academically to determine whether the doctrine for determining whether a simulation is present has changed - and if so, to what extent. Some argue that the comments in NWK, which is perceived to have changed the simulation test, were merely part of the obiter of the judgment, though they hasten to add that this does not mean that such comments are void of import where lower courts may consider the doctrine in future. Opposed hereto are those who are of the view that the judgment has indeed changed the simulation doctrine's landscape.
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Lobban, Michael. "The common law and English jurisprudence, 1760-1850 /." Oxford : Clarendon press, 1991. http://catalogue.bnf.fr/ark:/12148/cb37359904x.
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Kostal, Rande W. "Common law, common lawyers and the English railway industry, 1830-1880 : a study in the history of law and industrial capitalism." Thesis, University of Oxford, 1989. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.254211.
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Saccone, Giuseppe Mario. "History as rhetoric in Hobbes' dialogue of the Common Laws and the rise of modern philosophy." Thesis, Hong Kong : University of Hong Kong, 2000. http://sunzi.lib.hku.hk/hkuto/record.jsp?B22050449.
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Thompson, A. Keith. "Religious confession privilege at common law : a historical analysis /." Access via Murdoch University Digital Theses Project, 2006. http://wwwlib.murdoch.edu.au/adt/browse/view/adt-MU20070831.94056.
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Larkin, Philip M. "The rule of forfeiture and social security law." Thesis, University of Southampton, 2002. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.268387.
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Maqhosha, Noluthando. "An analysis of the South African common law defence of moderate and reasonable child chastisement." Thesis, University of Fort Hare, 2016. http://hdl.handle.net/10353/2556.
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The study sought to analyse the South African common law defence of moderate and reasonable child chastisement. Regarded by those with religious and cultural beliefs as a way of instilling child discipline, child chastisement has been a centre of contestation in recent years. Constitutionally, children have rights to care, dignity and protection. Thus, child chastisement infringes upon these rights. However, regardless of its intentions, child chastisement has an effect of inflicting pain onto its victims thereby infringing on their rights to human dignity, equality and protection. It can also lead to unintended consequences such as injury or death to its victims. Subjecting children to this cruel, inhuman and degrading action affects the development of children and sometimes haunts them at a later stage in life. In addition, child chastisement lacks the measure of determining whether it is moderate or severe, thereby making it prone to abuse or misuse. The study used a qualitative research paradigm, where data was collected from existing documents and analysed towards understanding child chastisement and finding sustainable ways of improving child welfare in the home or in society. The study also analysed the legal framework on child welfare and chastisement globally, regionally and locally. Instruments such as the UNCRC, ACRWC and the UDHR have a clear stance abolishing child chastisement. The study established that, despite the existence of global instruments promoting child care and protection, the common law defence of corporal punishment in the home and society remains a loophole that needs closing and enactment of laws that outlaws it completely.
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Nermark, Ebba. "Interpreting the Palermo Protocol : Common State Practice?" Thesis, Örebro universitet, Institutionen för juridik, psykologi och socialt arbete, 2019. http://urn.kb.se/resolve?urn=urn:nbn:se:oru:diva-76619.
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Mkonza, Qhinga Aidan. "A common law view of "carrying on a trade"." Thesis, Rhodes University, 2018. http://hdl.handle.net/10962/60888.
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The term “trade” is defined in very wide terms in the Income Tax Act and includes a “business” and a “venture”. For a taxpayer to claim certain deductions in arriving at taxable income, the taxpayer must be carrying on a trade. The expression “carrying on a trade” is not defined in the Income Tax Act. Whether or not a taxpayer is carrying on a trade is a matter of fact. Case law has established certain principles and tests to be applied in determining whether a taxpayer is carrying on a trade. The goal of the thesis was to determine to what extent an activity can be considered as carrying on a trade. This research focused on the letting of property, money-lending, or farming operations in relation to carrying on a trade or business or engaging in a venture. The thesis also discussed at what stage a taxpayer ceases to carry on a trade and what the tax consequences are of ceasing to trade. An interpretative research approach was used in the research as it sought to understand and describe. No interviews conducted for this research and the data used for the research are publicly available. It was established that “carrying on a trade”, including a business, requires an active step taken by the taxpayer to trade. It involves regularity of buying and selling or rendering of services. The intention to trade is important but it is a subjective matter and cannot be persuasive in determining whether a taxpayer is carrying on a trade; objective factors are also considered. If the stated intention to trade matches the actions of the taxpayer, the taxpayer will be considered to be carrying on a trade. In determining whether a taxpayer is carrying on a trade each case must be considered with its own merits.
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org, thompsonak@ldschurch, and Anthony Keith Thompson. "Religious Confession Privilege at Common Law: A Historical Analysis." Murdoch University, 2006. http://wwwlib.murdoch.edu.au/adt/browse/view/adt-MU20070831.94056.
Full textAbstract:
Since English lawyers started writing text books about the law of evidence, they have denied that religious confession privilege exists at common law. However, that statement of the law surprises those who recognise confessional secrecy dating back into the first millennium AD. It is also counter-intuitive in Federal Australia since the one human freedom which the Constitution has guaranteed since 1901 is the free exercise of any religion.
This thesis analyses the legal conclusion that there is no religious confession privilege at common law against available historical materials. Those materials include the origin of confessional secrecy in Christian practice and the entrenchment of that practice in canon law; the recognition and even the reception of canonical practices in the custom that became the common law; and all the English common law cases that have affirmed or denied religious confession privilege whether in passing or in an arguably precedential way. The reason why clear evidence of the existence of the privilege even seventy years after the English Reformation has been ignored by the text writers is traced to an uncorrected interpretive error made by the text writer Peake in 1801. His error has been uncritically followed and affirmed by later commentators and judges. However, until Gavan Duffy J decided Cook v Carroll in Ireland in 1945 and the Supreme Court of Canada decided R v Gruenke in 1991, there was no reported decision on religious confession privilege anywhere in the British Commonwealth. All else that had been written was at best obiter dicta.
The factors that influenced those two courts to recognise not a narrow religious confession privilege but a more encompassing confidential religious communications privilege are then measured against Australian jurisprudence to suggest whether the High Court of Australia would come to a similar conclusion.
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Hunt, Christopher Douglas Lorne. "Justifying and structuring a principled common law privacy tort." Thesis, University of Cambridge, 2013. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.607899.
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Magsig, Bjørn-Oliver. "International water law and the quest for common security." Thesis, University of Dundee, 2013. https://discovery.dundee.ac.uk/en/studentTheses/c08da455-ef7b-4879-95f7-9674df88c3ca.
Full textAbstract:
The world’s freshwater supplies are squeezed by rapidly increasing demand, the impacts of global climate change and unsustainable management. Given the fact that water is the gossamer linking various other security issues – e.g., energy, food and environment – it seems obvious that ‘business as usual’ in transboundary water management will threaten future global stability and endanger the very foundation of international security. Yet, the much needed radical new approach is missing. This is mainly due to the fact that addressing water insecurity is a highly complex task where multilevel and polycentric forces must be balanced and coordinated. The absence of law in much of this emerging debate highlights the necessity for further understanding and elucidation, especially from the legal perspective. This PhD thesis aims to add to the discourse by providing a fresh conceptualisation of water security and developing an operational methodology for identifying the four core elements of water security – availability, access, adaptability and ambit – which must be addressed by international law. The analysis of the legal framework of transboundary freshwater management based on this contemporary understanding of water security reveals the challenges and shortcomings of the current legal regime. In order to address these shortcomings, the present mindset of prevailing rigidity and state-centrism is challenged by examining how international legal instruments could be crafted to advance a more flexible and common approach towards transboundary water interaction. Here, the concept of considering water security as a matter of ‘regional common concern’ is introduced to help international law play a more prominent role in addressing the challenges of global water insecurity. Ways for implementing such an approach are proposed and analysed by looking at international hydropolitics in Himalayan Asia. At a time when international environmental law is said to be losing relevance, the growing complexity and interdependence between states demands a break with the prevalence of thinking in silos and within national borders. This PhD thesis analyses transboundary water interaction – the fault line of international conflict in the 21st century – as a ‘case study’ for advancing public international law in order to fulfil its responsibility of promoting international peace and security.
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Plunkett, James Christopher. "The duty of care : a comparative common law analysis." Thesis, University of Oxford, 2015. https://ora.ox.ac.uk/objects/uuid:0323d109-bf6b-4ccc-bbcc-effa936e7b54.
Full textAbstract:
The general aim of this thesis is to provide a detailed overview of the duty of care enquiry, drawing on both academic analyses and judicial experience in leading common law systems. The thesis starts by exploring the history of the duty concept, including how it first came to be an element of the negligence enquiry, and how it later came to be determined via the use of a general formula. The thesis then explores and analyses the various methods through which the existence of a duty of care has been determined. Having provided an overview of the development of the duty concept, it is then argued that the duty of care is best understood as consisting of two discrete parts: a factual aspect and a notional aspect. It is suggested that the factual aspect of the duty enquiry is superfluous and should be abandoned so that the duty enquiry is a notional issue only. It is then argued that the notional aspect of the duty enquiry is best understood as consisting of two separate types of determinations: those relating to broad situations, and those based on assumptions of responsibility. Both of these types of notional duty determinations are explored in detail. The propriety of basing situational notional duty determinations on considerations of policy, and the necessity of notional duty, are also considered. Finally, the thesis provides an overview of an empirical study of ultimate appellate court duty decisions, investigating, among other things, whether the understanding of duty provided in the thesis is consistent with the practice of the courts.
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Earle, Murray. "Judicial policy in the common law of informed consent." Thesis, University of Edinburgh, 2000. http://hdl.handle.net/1842/22173.
Full textAbstract:
This thesis has entailed an investigation into the common law of informed consent to medical procedures among competent adults. This fails within the law of delict in Scotland and South Africa and within the law of torts in England, Canada, Australia and the United States of America. These six jurisdictions comprise the countries whose common law has been deconstructed by this thesis. This deconstruction was done with the aim of highlighting those points in the law of negligence, delict and/or torts at which policy is made or enforced in favour of the patient, the medical practitioner or indeed in favour of compromise. The thesis begins by considering the nature of the relationship between the doctor and the patient - the parties who will later become the defender/defendant and the pursuer/plaintiff in law. The thesis then follows two routes concurrently. The sequence of chapters has followed the judicial inquiry into informed consent. Accordingly, it begins with a choice of laws issue: into which category of law will the informed consent scenario fall. Having concluded that any action lies primarily within the law of negligence, the route of that particular judicial inquiry has been followed. Chapters which follow cover the issues of the standard of care, the breach of the duty and causation, before moving on to consider the weight given to medical and lay evidence at each stage of that judicial inquiry. At each stage the different judicial tests and standards of the jurisdictions have been compared and contrasted. Within each chapter, another route has been followed. This has been coined the geochronological route because through time the doctrine of informed consent has traversed the globe from America, through Canada, Australia and South Africa, but has not found sanctuary in either England or Scotland. This leads us to the penultimate chapter in which we pose the question 'Informed Consent: Quo Vadis?' This chapter concludes that there are several routes to the adoption of consent principles in the United Kingdom, but none of these will lead to the adoption of the doctrine of informed consent. This is because of the security of the judicial tests in the Bolam and Hunter v Hanley cases. From a comparison throughout the thesis to alternative standards and tests outwith the United Kingdom, the concluding chapter comes out in support of these tests as able to reflect patients' interests because together they constitute a floating benchmark. This is possible precisely because of the operation of judicial policy within the common law of informed consent.
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Thompson, Anthony Keith. "Religious confession privilege at common law: a historical analysis." Thesis, Thompson, Anthony Keith (2006) Religious confession privilege at common law: a historical analysis. PhD thesis, Murdoch University, 2006. https://researchrepository.murdoch.edu.au/id/eprint/358/.
Full textAbstract:
Since English lawyers started writing text books about the law of evidence, they have denied that religious confession privilege exists at common law. However, that statement of the law surprises those who recognise confessional secrecy dating back into the first millennium AD. It is also counter-intuitive in Federal Australia since the one human freedom which the Constitution has guaranteed since 1901 is the 'free exercise of any religion'.
This thesis analyses the legal conclusion that there is no religious confession privilege at common law against available historical materials. Those materials include the origin of confessional secrecy in Christian practice and the entrenchment of that practice in canon law; the recognition and even the reception of canonical practices in the custom that became the common law; and all the English common law cases that have affirmed or denied religious confession privilege whether in passing or in an arguably precedential way. The reason why clear evidence of the existence of the privilege even seventy years after the English Reformation has been ignored by the text writers is traced to an uncorrected interpretive error made by the text writer Peake in 1801. His error has been uncritically followed and affirmed by later commentators and judges. However, until Gavan Duffy J decided Cook v Carroll in Ireland in 1945 and the Supreme Court of Canada decided R v Gruenke in 1991, there was no reported decision on religious confession privilege anywhere in the British Commonwealth. All else that had been written was at best obiter dicta.
The factors that influenced those two courts to recognise not a narrow religious confession privilege but a more encompassing confidential religious communications privilege are then measured against Australian jurisprudence to suggest whether the High Court of Australia would come to a similar conclusion.
47
Thompson, Anthony Keith. "Religious confession privilege at common law: a historical analysis." Thompson, Anthony Keith (2006) Religious confession privilege at common law: a historical analysis. PhD thesis, Murdoch University, 2006. http://researchrepository.murdoch.edu.au/358/.
Full textAbstract:
Since English lawyers started writing text books about the law of evidence, they have denied that religious confession privilege exists at common law. However, that statement of the law surprises those who recognise confessional secrecy dating back into the first millennium AD. It is also counter-intuitive in Federal Australia since the one human freedom which the Constitution has guaranteed since 1901 is the 'free exercise of any religion'.
This thesis analyses the legal conclusion that there is no religious confession privilege at common law against available historical materials. Those materials include the origin of confessional secrecy in Christian practice and the entrenchment of that practice in canon law; the recognition and even the reception of canonical practices in the custom that became the common law; and all the English common law cases that have affirmed or denied religious confession privilege whether in passing or in an arguably precedential way. The reason why clear evidence of the existence of the privilege even seventy years after the English Reformation has been ignored by the text writers is traced to an uncorrected interpretive error made by the text writer Peake in 1801. His error has been uncritically followed and affirmed by later commentators and judges. However, until Gavan Duffy J decided Cook v Carroll in Ireland in 1945 and the Supreme Court of Canada decided R v Gruenke in 1991, there was no reported decision on religious confession privilege anywhere in the British Commonwealth. All else that had been written was at best obiter dicta.
The factors that influenced those two courts to recognise not a narrow religious confession privilege but a more encompassing confidential religious communications privilege are then measured against Australian jurisprudence to suggest whether the High Court of Australia would come to a similar conclusion.
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Allport, Lesley Ann. "Exploring the common ground in mediation." Thesis, University of Birmingham, 2016. http://etheses.bham.ac.uk//id/eprint/6746/.
Full textAbstract:
This study examines similarities and differences in mediation practice across sectors and considers whether variations in delivery are so wide that they cannot be regarded as the same process. The following conclusions are based on interviews with experienced practitioners from a variety of settings: There is far more commonality across sectors than is currently acknowledged among mediators. While there are undoubtedly variations in practice, these are found as much within fields of delivery as between them. Historically, mediation operated within communities and provided social cohesion in the face of conflict and disharmony. As a result of the ADR movement, mediation is now closely associated with the civil justice system and virtually synonymous with ‘settlement’. This limits the potential for addressing ideological aspects of conflict resolution such as enhanced communication and relationship repair. There is an unresolved relationship between mediation and law, and an uneasy tension between lawyers and mediators. This is seen in the evolution of hybrid roles such as that of the ‘lawyer-mediator’. The mediation profession remains disjointed and makes little attempt to engage in dialogue across sectors. Despite core principles in common, there is no one representative voice of mediation and a need for greater clarity and cohesion.
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Alem, Mohammed Y. "The applicable law to international commercial contracts : harmonization perspectives between civil and common law?" Thesis, McGill University, 1991. http://digitool.Library.McGill.CA:80/R/?func=dbin-jump-full&object_id=61160.
Full textAbstract:
There seems to be wide acceptance of the idea that divergencies between legal systems give rise to disadvantages. These divergencies are, and have always been, regarded as inconveniences to overcome, particularily between the Civil and Common Law traditions, which present quite diverging points of view in the way the Law is thought. Today, one criterion of evaluating any harmonization of international legal norms is the extent to which the effort enhances certainty, a quality much appreciated in the field of international commercial contracts.In fact, today, there is a detectable effort on the international level to harmonize the laws, especially in relevance to international contracts, in order to provide a better environment for world trade.
When we decided to go through this subject, we had in mind the importance of understanding this harmonization tendency on the international sphere. That may be the reason why we have tried, in this thesis, to expose the harmonization process adopted by some recent conventions. Our purpose was to prove that, even though differences and disparities may exist, as long as there is a uniform tendency toward social and cultural uniformity, one might predict that these divergencies would eventually even out. We see in this tendency an indication of the convergence of the Common and Civil Law toward the same destination: make this world a better place.
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Sinclair, Michael David. "Common law constraints in public and private law over the exercise of privatised functions." Thesis, University of Cambridge, 1994. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.295292.
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