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Journal articles on the topic 'Common law'

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Published: 4 June 2021
Last updated: 30 July 2024

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1

Goodrich, Peter. "Eating law: Commons, common land, common law." Journal of Legal History 12, no. 3 (December 1991): 246–67. http://dx.doi.org/10.1080/01440369108531041.

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2

De Maria, William. "Common law – common mistakes?" International Journal of Public Sector Management 19, no. 7 (December 2006): 643–58. http://dx.doi.org/10.1108/09513550610704671.

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3

Glenn, H. Patrick. "Common Law." McGill Law Journal 66, no. 1 (2020): 19. http://dx.doi.org/10.7202/1082032ar.

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4

Šite, Damir. "Common Law legal norm." Strani pravni zivot, no. 1 (2021): 15–29. http://dx.doi.org/10.5937/spz65-26843.

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In this paper the author attempts to define the otherness of common law legal norm in relation to that of a civilian one, through the analysis of differences identified in their formation and language. The first part deals with similarities and discrepancies in the process of creating a legal norm within two major legal families, examining the operational particularities of the two fundamentally different norm-creators. In this respect, the paper presents essential dissimilarities between the activities of a parliament as a legislator, opposed to an Anglo-American court as a creator of a binding precedent. The second part is dedicated to the analysis of the language of legal norm in two major European legal systems. The paper examines the language structure both in common law and civilian legal norms, as well as its limitations based on the particularities of forums in which they were created: the parliament and the court.
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5

LOBBAN, MICHAEL. "Common Law and Common Sense." Ratio Juris 21, no. 4 (December 2008): 541–46. http://dx.doi.org/10.1111/j.1467-9337.2008.00406.x.

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6

Yip, Man, and Yihan Goh. "Convergence between Australian common law and English common law." Common Law World Review 46, no. 1 (March 2017): 61–68. http://dx.doi.org/10.1177/1473779516682445.

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7

Ibbetson, D. J. "Natural Law and Common Law." Edinburgh Law Review 5, no. 1 (January 2001): 4–20. http://dx.doi.org/10.3366/elr.2001.5.1.4.

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If you scan through the law reports ofthe last century or so, you will come across a sprinkling of references to Natural Law, commonly in conjunction with some such phrase as “manifest nonsense”.1 Introductory books dealing with the sources of law hardly place it in the forefront of their treatment, to say the least; and anyone writing a practitioners' manual on some practically useful area of law who began with a chapter on Natural Law would be thought to have taken leave of his senses. Go back two or three hundred years or so and the picture looks very different. References to the law of nature abound in the reports of the seventeenth and eighteenth centuries; institutional writers dealing with the Common Law will regularly list Natural Law as one of its principal sources, and when Stewart Kyd wrote the first English book on what we would now call company law2 the obvious starting pointfor his first chapter was the work of the Natural Lawyers of the previous century. England, like everywhere else in Europe, had been caught up in a fervour of Natural Law thinking. Legal historians, of course, are well aware of this, but commonly portray it in their books as part of the background against which the Common Law was worked out, rather than as an integral part ofthe story of English law's development.3 This downplaying of the practical significance of Natural Law represents something of a lost opportunity, not merely because it can give a frame of reference within which some sense can be made ofthe reorientation of English law in the eighteenth century, but also because it provides an important point ofcontact between the all-too-insular history ofEnglish law and the apparently more homogeneous legal history of the rest of Europe.
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8

Schauer, Frederick, and Melvin A. Eisenberg. "Is the Common Law Law?" California Law Review 77, no. 2 (March 1989): 455. http://dx.doi.org/10.2307/3480610.

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9

Bradley, D. "Comparative Law, Family Law and Common Law." Oxford Journal of Legal Studies 23, no. 1 (March 1, 2003): 127–46. http://dx.doi.org/10.1093/ojls/23.1.127.

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10

Beatson, J. "Common Law, Statute Law, and Constitutional Law." Statute Law Review 27, no. 1 (January 1, 2006): 1–14. http://dx.doi.org/10.1093/slr/hmi021.

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11

Mulligan, Deirdre, and Dame Cicely Saunders. "Common Law Correction." Hastings Center Report 26, no. 3 (May 1996): 2. http://dx.doi.org/10.2307/3527920.

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12

Fordham, Michael. "Common Law Rights." Judicial Review 16, no. 1 (March 2011): 14–21. http://dx.doi.org/10.5235/108546811795316582.

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13

Arras, John D., Albert R. Jonsen, and Stephen Toulmin. "Common Law Morality." Hastings Center Report 20, no. 4 (July 1990): 35. http://dx.doi.org/10.2307/3562766.

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14

Fordham, Michael. "Common Law Proportionality." Judicial Review 7, no. 2 (June 2002): 110–23. http://dx.doi.org/10.1080/10854681.2002.11427214.

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15

Razook, Nim. "Obeying Common Law." American Business Law Journal 46, no. 1 (March 2009): 55–101. http://dx.doi.org/10.1111/j.1744-1714.2009.01072.x.

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16

Meyler, Bernadette. "Common Law Confrontations." Law and History Review 37, no. 03 (August 2019): 763–86. http://dx.doi.org/10.1017/s0738248019000385.

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This symposium essay contends that the image of the common law drawn by the Supreme Court in the Confrontation Clause context is both distorted and incomplete. In particular, the Court and scholars defending originalist positions rely almost entirely on English sources in their reconstruction of the common law basis for the Confrontation Clause, thereby neglecting the diversity of American common laws from the time of the Founding, a diversity that has already been unearthed by a number of legal historians. By drawing on hitherto untapped sources to furnish a bottom-up reconstruction of how testimony was treated in local criminal courts within mid- to late-eighteenth-century New Jersey, this essay demonstrates that, in at least some jurisdictions, the originalist vision of common law did not apply. The common law cannot, therefore, furnish a univocal answer to questions about the original meaning of the Confrontation Clause.
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17

Lucas, Peter. "Common Law Marriage." Cambridge Law Journal 49, no. 1 (March 1990): 117–34. http://dx.doi.org/10.1017/s0008197300106920.

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The expression “common law marriage” has layers of paradox. It now denotes, as Mr. J. C. Hall pointed out in a recent article in this Journal, a relationship whose characteristic is precisely that it is extra-marital. Previously, for many centuries, the validity of such a marriage was a matter not for the common but the canon law and so, before the Reformation, for the canon law of Rome, the ius commune, Maitland's “wonderful system” administered by the courts Christian and directly applicable throughout western Christendom. The story of the common law marriage in England, Scotland and Ireland offers glimpses of great historical processes and-provides a wider context in which to consider the question raised by Mr Hall as to the survival, or revival, of the common law marriage in England.
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18

Hall, J. C. "Common Law Marriage." Cambridge Law Journal 46, no. 1 (March 1987): 106–21. http://dx.doi.org/10.1017/s0008197300113637.

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To re-open problems of the past and to rake up arguments long since laid to rest may seem a singularly pointless exercise for a family lawyer of the late twentieth century. Yet the controversy which raged in the 1840s over the requirements for common law marriage was never satisfactorily resolved; and even today the question could still arise and an authoritative answer be required.
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19

Boonzaier, Leo. "Common-law avoidance." South African Law Journal 141, no. 2 (2024): 213–56. http://dx.doi.org/10.47348/salj/v141/i2a1.

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This article discusses an important trend in recent judgments of our appellate courts, which I call ‘common-law avoidance’. Rather than applying established sets of common-law principles, the courts have chosen to substitute them with other sets of norms of their own invention, usually sourced in the Constitution. This marks a departure from the status quo ante, in which it was accepted that the impact of the Constitution on private-law disputes was to be felt through the common law, rather than by displacing it. I discuss three cases that evidence this new pattern, spanning the three branches of the law of obligations: AB v Pridwin Preparatory School, which implicated the law of contract; Esorfranki Pipelines (Pty) Ltd v Mopani District Municipality, involving delict; and Greater Tzaneen Municipality v Bravospan 252 CC, which raised an issue in the law of unjustified enrichment. I critically assess the trend exhibited in these cases, arguing that it is the result of (among other factors) the courts’ preference for the Constitution’s more familiar and discretionary standards, and of their increasing difficulties in meeting the demands of the common-law method.
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20

Woodman, Gordon R. "Customary Law in Common Law Systems." IDS Bulletin 32, no. 1 (January 2001): 28–34. http://dx.doi.org/10.1111/j.1759-5436.2001.mp32001004.x.

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21

Strauss, David A. "Common Law, Common Ground, and Jefferson's Principle." Yale Law Journal 112, no. 7 (May 2003): 1717. http://dx.doi.org/10.2307/3657499.

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22

Singh, Mahendra P. "German Administrative Law in Common Law Perspective." Verfassung in Recht und Übersee 19, no. 4 (1986): 491–92. http://dx.doi.org/10.5771/0506-7286-1986-4-491.

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23

Steele, Iain. "PUBLIC LAW LIABILITY—A COMMON LAW SOLUTION?" Cambridge Law Journal 64, no. 3 (November 2005): 543–46. http://dx.doi.org/10.1017/s0008197305286956.

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24

Nnona, Chukwuemeka George. "Customary Corporate Law in Common Law Africa." American Journal of Comparative Law 66, no. 3 (September 2018): 639–68. http://dx.doi.org/10.1093/ajcl/avy032.

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25

Rymarchuk, R. M. "THE COMMON LAW AND CIVIL LAW TRADITIONS." Juridical scientific and electronic journal, no. 3 (2023): 191–93. http://dx.doi.org/10.32782/2524-0374/2023-3/43.

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26

Fox-Decent, Evan. "Democratizing Common Law Constitutionalism." McGill Law Journal 55, no. 3 (February 10, 2011): 511–35. http://dx.doi.org/10.7202/1000622ar.

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Common law constitutionalism is the theory that legal principles such as fairness and equality reside within the common law, are constitutive of legality, and inform (or should inform) statutory interpretation on judicial review. This article looks to Justice Rand’s judgment in Roncarelli v. Duplessis to develop a democratic and relational conception of common law constitutionalism. By “democratic” the author means a version of the theory that governs judicial review but which is available to frontline decision makers independently of the history and contemporary practice of review. By “relational” the author means a theory that presupposes a trust-like and legally significant relationship between public authorities and the persons subject to their power. Under the democratic and relational theory, the legality of administrative action is assessed in light of legal principles constitutive of the trust-like relationship and without reference to the separation of powers. These principles flow from the trust-like nature of the relationship and the implications of working out how public authorities can hold discretionary power over individuals without subjecting them to domination or instrumentalization.
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27

Strauss, David A. "Common Law Constitutional Interpretation." University of Chicago Law Review 63, no. 3 (1996): 877. http://dx.doi.org/10.2307/1600246.

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28

Phillips, Jim, and Kent McNeil. "Common Law Aboriginal Title." University of Toronto Law Journal 41, no. 2 (1991): 287. http://dx.doi.org/10.2307/825848.

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29

Legrand, P. "Pour le common law." Revue internationale de droit comparé 44, no. 4 (1992): 941–47. http://dx.doi.org/10.3406/ridc.1992.4577.

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30

LUCY, WILLIAM N. R. "Rethinking the Common Law." Oxford Journal of Legal Studies 14, no. 4 (1994): 539–64. http://dx.doi.org/10.1093/ojls/14.4.539.

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31

Michael, James. "Information and Common Law." Records Management Journal 3, no. 3 (March 1991): 78–81. http://dx.doi.org/10.1108/eb027062.

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32

Olley, Kate. "Proportionality at Common Law." Judicial Review 9, no. 3 (September 2004): 197–201. http://dx.doi.org/10.1080/10854681.2004.11427313.

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33

Poole, Thomas. "Questioning common law constitutionalism." Legal Studies 25, no. 1 (March 2005): 142–63. http://dx.doi.org/10.1111/j.1748-121x.2005.tb00274.x.

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This article takes a critical look at common law constitutionalism, a theory which has received much support in public law circles of late. The first part of the article elaborates the common law constitutionalist position. The second part of the article assesses the cogency of the theory in terms of its ability to accommodate certain paradigmatic features of judicial review. The article concludes with the suggestion that public lawyers, in their forays into theory, might do better to look to the special role that judicial review plays in assessing the legitimacy of governmental action rather than its supposed connection with ‘fundamental principles of morality’.
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34

Leslie, Justin. "Vindicating common law constitutionalism." Legal Studies 30, no. 2 (June 2010): 301–23. http://dx.doi.org/10.1111/j.1748-121x.2010.00157.x.

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This paper questions Thomas Poole's assertion that judicial review is not ‘value orientated’ (see (2005) 25(1) Legal Studies 146). In doing so, the paper seeks to demonstrate that the account of judicial review given by common law constitutionalist writers provides an accurate description of the approach taken by the courts in the last 10 years. The paper first considers Poole's objections to common law constitutionalism. It then proceeds to assess the writings of those relied upon by Poole against the case-law of the last decade. This is done by reference to three ‘themes’– the basis of judicial review; a substantive rule of law; fundamental values and constitutional rights. The paper concludes by suggesting that when a thematic approach to the theory is adopted, the case-law of the last decade provides vindication for the main tenets of common law constitutionalism.
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35

Janis, Mark W. "The Common Law Tradition." Proceedings of the ASIL Annual Meeting 83 (1989): 547–50. http://dx.doi.org/10.1017/s027250370007676x.

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36

DiMatteo, Larry A. "Common European Sales Law." Journal of International Trade Law and Policy 11, no. 3 (September 7, 2012): 222–40. http://dx.doi.org/10.1108/14770021211267342.

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37

Robinson, Tracy. "A Caribbean common law." Race & Class 49, no. 2 (October 2007): 118–24. http://dx.doi.org/10.1177/03063968070490020608.

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38

Mayeda, Graham. "Uncommonly Common: The Nature of Common Law Judgment." Canadian Journal of Law & Jurisprudence 19, no. 1 (January 2006): 107–31. http://dx.doi.org/10.1017/s0841820900005610.

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What is the difference between “judge-made law” and the laws created by an elected assembly? The purpose of this paper is to investigate this question by addressing the differences and similarities between common law judgment and political judgment. I contend that there is something distinctive about common law judgment. This distinctive nature is the result of the different ground of validity of legal and political decisions. Legal judgment has a distinct ground of validity. This validity derives from two aspects of common law judgment: the impartiality of the decision-maker and the critical function built into common law reasoning itself. I articulate this view by drawing on Hannah Arendt’s lectures on Immanuel Kant’s Critique of Judgment, as well as on the work of theorists such as H.L.A. Hart, Ronald Dworkin and Joseph Raz. I also discuss Canadian and U.K. cases in which judges address their role and explain their views on precedent, the need for judgments to respond to the arguments of the parties, and the importance of law adapting to the constantly changing circumstances of the modern world.
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39

Phang, Andrew B. L. "Common mistake in English law: the proposed merger of common law and equity." Legal Studies 9, no. 3 (November 1989): 291–306. http://dx.doi.org/10.1111/j.1748-121x.1989.tb00652.x.

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Although the law relating to common mistake has engendered a plethora of conundrums, many problem areas have in fact been well-traversed in the literature. The present article does not seek to re-cover such welltrodden ground, but attempts, instead, to suggest a different and more systematic approach that would effect a merger of the common law and equitable branches of common mistake into one coherent, doctrine.
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40

Basedow, Jürgen. "A COMMON CONTRACT LAW FOR THE COMMON MARKET." Common Market Law Review 33, Issue 6 (December 1, 1996): 1169–95. http://dx.doi.org/10.54648/124866.

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41

Masud, Muhammad Khalid. "‘Urf’ And Custom In Common Law And Islamic Law: Common Law Marriage, Zawag Orfi And Zawaj Misyar." NAVEIÑ REET: Nordic Journal of Law and Social Research, no. 1 (December 1, 2015): 4–28. http://dx.doi.org/10.7146/nnjlsr.v0i1.111130.

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42

Pree, Helmuth. "Schadenersatz: Common Law und Civil Law Im Vergleich." Archiv für katholisches Kirchenrecht 182, no. 2 (June 24, 2013): 353–85. http://dx.doi.org/10.30965/2589045x-18202002.

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43

Riley, Joellen. "Teaching Labour Law in a Common Law Jurisdiction." International Journal of Comparative Labour Law and Industrial Relations 28, Issue 1 (March 1, 2012): 71–79. http://dx.doi.org/10.54648/ijcl2012006.

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Frequent changes in domestic labour legislation and policy and the pressures of globalization have created particular challenges for the teaching of the discipline of labour law. These challenges also present opportunities for refreshment of the labour law curriculum to inject a deeper appreciation of the fundamental principles underpinning the regulation of work and to introduce topics of relevance to the twenty-first century student. This paper reflects on those challenges and opportunities from an antipodean perspective.
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44

Angelo, A. H., and Ashleigh Allan. "Common Law Equity in a Civil Law Country." Victoria University of Wellington Law Review 44, no. 3/4 (November 1, 2013): 427. http://dx.doi.org/10.26686/vuwlr.v44i3/4.4992.

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This article serves to introduce an aspect of current research related to the review of the Seychelles Civil Code and the important question of the role of trusts. The Civil Code is based on the Code Napoléon and has therefore no provision for the trust of English law. The Courts of Seychelles have, however, a statutory equitable jurisdiction. That jurisdiction has given rise to the question whether the trust of England may be able to operate in Seychelles. The prime area of discussion of this possibility has been in relation to the property rights of the parties to a failed concubinage relationship. This article focuses on that discussion.
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45

Pree, Helmuth. "SCHADENERSATZ: COMMON LAW UND CIVIL LAW IM VERGLEICH." ARCHIV FÜR KATHOLISCHES KIRCHENRECHT 182, no. 2 (November 24, 2013): 353–85. http://dx.doi.org/10.1163/2589045x-182-02-90000002.

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46

Fleiner, Thomas. "Discrepancies between Civil Law and Common Law Federations." Max Planck Yearbook of United Nations Law Online 19, no. 1 (May 30, 2016): 368–418. http://dx.doi.org/10.1163/18757413-00190014.

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Over the last decade, missions of the UN have assisted with constitutional reforms including issues of federalism. The hopes for peace with regard to federal structures have often failed. This paper elaborates possible reasons why these hopes were disappointed. It will show that one should understand the differences between Common Law and continental systems with regard to federalism. Some experts from Common Law countries fail to appreciate the substantial difference between federal Constitutions embedded in a Civil Law culture and those embedded in a Common Law culture. The reasons for the success or failure of past, present and future federal reforms may help to improve UN activities in this field. States of the Common Law tradition are not collective units, which have to steer their society. The Jacobins of the French Revolution, considered the State as their instrument to transform feudal society into a society of equal individuals. The Civil Law tradition has its roots in the French Revolution and in the sovereignty of the national legislative assembly as the only legitimate lawmaker of the State. The unity of the law does not depend on decisions of courts but only on the legislature. Constitutions of Civil Law federations need to enable the specified governmental branches of the federation to impose sanctions against federal units that fail to comply with federal laws. According to the perspective of the Civil Law one has to deal with two ‘States’ claiming sovereignty in a hierarchy, while from the perspective of the Common Law one has to deal with mere ‘governments.’ Constitutions of multicultural federations embedded within the Civil Law culture will have to empower not just the federation but also the federal units to develop the different cultural identities. To foster different cultures is however, not a major function of the State of the Common Law tradition. Federalism of the Civil Law tradition is more complex than according to the Common Law tradition. Important differences between federations of a Common Law and Civil Law tradition lies in the lawmaking power of the courts. In Common Law, courts and legislature share the task of lawmaking; in Civil Law countries, the legislature regulates all issues of civil and criminal law. In a Civil Law country, legislatures, executives and courts cannot function if there is no valid local Constitution empowering those branches of the federal units. Thus, the federal Constitution of a civil law country has to establish the powers of the governmental branches of the federal units. Within federal system of the Civil Law, the federal units administer, implement and execute the laws of the federation. Constitutions of Civil Law federations need special provisions for the power of the federation to control and implement federal laws in the federal units. The civil law judiciary has no contempt of court against the administration and against authorities of federal units.
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47

Kistenkas, Frederik H. "COMPARATIVE LIBEL LAW: TOWARDS A CONTINENTAL COMMON LAW?" Tilburg Law Review 7, no. 1 (January 1, 1998): 17–26. http://dx.doi.org/10.1163/221125998x00038.

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48

Sturgeon, Roy L. "When Chinese Socialist Law Marries Western Common Law." Chinese Journal of Comparative Law 5, no. 1 (March 1, 2017): 226–30. http://dx.doi.org/10.1093/cjcl/cxx009.

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49

Smedley-Weill, Annette. "Common(s) law et souveraineté." Cahiers d Économie Politique 40-41, no. 2 (2001): 193. http://dx.doi.org/10.3917/cep.040.0193.

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50

Reynolds, Christopher. "Common law duties of prescribers." Australian Prescriber 19, no. 1 (January 1, 1999): 18–20. http://dx.doi.org/10.18773/austprescr.1996.015.

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