Journal articles on the topic 'Constitutional law – England'
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1
Somek, Alexander. "Constitutional Theory as a Problem of Constitutional Law: On the Constitutional Court's Total Revision of Austrian Constitutional Law." Israel Law Review 32, no. 4 (1998): 567–90. http://dx.doi.org/10.1017/s0021223700015806.
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La. I clear it thus out of Sir Edw. Coke 1 Inst. Sect. 138. that this [Legal Reason] is to be understood of an artificial perfection of Reason gotten by long Study, Observation and Experience, and not of every Mans natural Reason; for Nemo nascitur Artifex. This Legal Reason is summa Ratio; and therefore if all the Reason that is to be dispersed into so many several heads were united into one, yet could he not make such a Law as the Law of England is, because by so many successions of Ages it hath been fined and refined by an infinite number of Grave and Learned Men.Ph. […] I grant you that the knowledge of the Law is an Art, but not that any Art of one Man, or of many how wise soever they be, or the work of one and more Artificers, how perfect soever it be, is Law. It is not Wisdom, but Authority that makes a Law. […] That the Law hath been fined by Grave and Learned Men, meaning the Professors of the Law is manifestly untrue, for all the Laws of England have been made by the Kings of England, consulting with the Nobility and Commons in Parliament, of which not one of twenty was a Learned Lawyer.
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Müßig, Ulrike. "Constitutional conflicts in seventeenth-century England." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 76, no. 1-2 (2008): 27–47. http://dx.doi.org/10.1163/157181908x277563.
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AbstractIn the constitutional conflicts of the 17th century, both Crown and Parliament justified actions contrary to the other's will by reference to necessity. The Crown held the raising of additional finance to be necessary; the Parliament, its raising of a militia. The competence to determine a time of necessity, and to decide on the public good in it, was the key to sovereignty. In a series of cases reaching a peak in Hampden, the courts handed the Crown an unrestrained Prerogative. With the Militia Ordinance, a disturbed Parliament then claimed the competence for deciding on the public good in an emergency, even against the King's will, because its judgements as opposed to the king's discretion in his Royal prerogative were based on the common law which bound even the King. The concept of Parliament as a court of common law is often under-emphasized, though this is at the heart of the Parliament's claim to sovereignty achieved in 1689, because the Monarch could veto legislative acts, but he could not veto judgements.
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Brown, Kate Elizabeth. "Rethinking People v. Croswell: Alexander Hamilton and the Nature and Scope of “Common Law” in the Early Republic." Law and History Review 32, no. 3 (August 2014): 611–45. http://dx.doi.org/10.1017/s0738248014000248.
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While serving in the New York Assembly in 1787, Alexander Hamilton identified a problematic clause in New York's constitution. Remarking on an act for settling intestate estates, Hamilton asked, “The question is what is meant in the constitution, by this phrase ‘the common law’?” He went on to describe an important distinction in his legal and constitutional thought: These words have in a legal view two senses, one more extensive, the other more strict. In their most extensive sense, they comprehend the [British] constitution, of all those courts which were established by memorial custom, such as the court of chancery, the ecclesiastical court, &c. though these courts proceed according to a peculiar law. In their more strict sense, they are confined to the course of proceedings in the courts of Westminster in England, or in the supreme court of this state. After suggesting that the constitution's reference to “common law” encompassed more than just the case reports generated by the central courts in Westminster, Hamilton determined that, “I view it as a delicate and difficult question; yet, I am inclined to think that the more extensive sense may be fairly adopted.” Although Hamilton referred here only to the intestacy bill, the distinction between a “strict” and an “extensive” common law would animate his constitutional and legal thought, many years later, during his famous defense of Federalist publisher Harry Croswell.
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Young, Alison L. "The Constitutional Implications of Brexit." European Public Law 23, Issue 4 (November 1, 2017): 757–86. http://dx.doi.org/10.54648/euro2017043.
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This Article investigates the constitutional implications of Brexit, focusing on the extent to which Brexit challenges the classification of the UK constitution as a self-correcting unitary democracy, upholding parliamentary sovereignty. It argues that, Brexit removes some of the European layer from the UK’s emerging multi-layered constitution, but in doing so it threatens to undermine the delicate relationship between England, Scotland, Wales and Northern Ireland on which the Union is based, particularly in the light of recent political events. In addition, it argues that Brexit may not restore the sovereignty of the Westminster Parliament and may also mark a further moment in the constitutionalization of the UK, modifying the balance of power between Parliament and the courts by placing more decision-making power in the hands of the courts.
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Rahmatian, Andreas. "Brexit and Scotland: Centralism, Federalism or Independence?" European Review 26, no. 4 (April 25, 2018): 616–47. http://dx.doi.org/10.1017/s1062798718000054.
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The public debate about the consequences of Brexit in Britain follows certain predictable lines of established academic concepts in British constitutional law. This arguably overlooks the important constitutional complications of Brexit, including the position of Scotland in post-Brexit Britain. This article takes the unorthodox approach of focusing on legal and intellectual history rather than British constitutional law, because in this way one obtains a better understanding of the present British constitutional framework in the context of Europe. The discussion is from a continental European viewpoint and through the eyes of a private and commercial lawyer. The completely different understanding of Britain and Europe about the nature of a constitution and the structure of a state becomes more apparent with Britain’s departure from the EU, which may also influence the future national cohesion of the UK itself, particularly the relationship between England and Scotland after Brexit.
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Tierney, Stephen. "England – Constitutional Reform under the New Labour Government." European Public Law 3, Issue 4 (December 1, 1997): 461–73. http://dx.doi.org/10.54648/euro1997043.
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Abernathy, Charles F. "The Lost European Aspirations of U.S. Constitutional Law." German Law Journal 4, no. 6 (June 1, 2003): 595–611. http://dx.doi.org/10.1017/s2071832200016254.
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Most European and American attorneys and judges think the U.S.A. has its legal roots in English common law, and that is probably true for the many areas of U.S. law that are still controlled by the traditional common-law process of simultaneously making and applying law. Yet, with respect to constitutional law – America's greatest legal contribution to modern respect for the rule of law, the roots of the U.S. legal system are firmly planted in Europe, not England. The U.S. Constitution was inspired by French revolutionary ideas of rationalism in law; it was intended as an integrated document just like codes; and it has been interpreted by American judges to be not just a political document but binding law – law that is binding on all three branches of government, legislative, executive, and judiciary. In fact that was the holding in Marbury v. Madison, the case decided exactly two hundred years ago.
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Macurdy, Allan H. "Rights Respiration: Disability, Isolation, and a Constitutional Right of Interaction." Texas Wesleyan Law Review 13, no. 2 (March 2007): 737–48. http://dx.doi.org/10.37419/twlr.v13.i2.20.
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In 1772, Lord Mansfield, Chief Justice of the King's Bench, presided over a case involving a slave, James Somerset, who had been brought by his master from Virginia to England and who claimed that his simple presence on English soil made him free. Among Somerset's lawyers was one Francis Hargrave, who was arguing the first case of his career that day. Hargrave maintained that "the Air of England was too pure for slavery," quoting the advocate in a prior case and drawing upon the commonly held understanding that slavery was incompatible with a society of rights, and that it deprived the individual of the very indicia of humanity. Asking rhetorically whether the law of a lowly colony or a barbarous state should prevail over the law of England, Hargrave declared that "[i]n England ... freedom is the grand object of the laws, and dispensed to the meanest individual."
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Kaiser, Anna-Bettina. "“It Isn't True that England Is the Moon”: Comparative Constitutional Law as a Means of Constitutional Interpretation by the Courts?" German Law Journal 18, no. 2 (March 1, 2017): 293–308. http://dx.doi.org/10.1017/s2071832200021969.
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This Article evaluates the merits and problems of comparative constitutional law as an interpretive means by the courts. It pleas for a nuanced perspective towards both agents and methods of comparative constitutional law. The Article is in favor of the use of comparative constitutional law by the courts. However, challenges as to the legitimation of comparison in court, functional limits of comparative constitutional law in the judiciary, and methodological questions remain to be solved. As far as constitutional and supreme courts are concerned, this Article argues that arguments derived from comparison should be regarded as a means of persuasive reasoning.
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Lobban, Michael. "Habeas Corpus: from England to Empire." International Journal of Law in Context 7, no. 2 (April 27, 2011): 257–69. http://dx.doi.org/10.1017/s1744552311000085.
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The ‘Great Writ’ of habeas corpus has long had an iconic status as the ‘writ of liberty’ which ensured that no person could be detained in prison without being put to trial by a jury of his peers. According to the traditional version, popularised by Whiggish constitutional writers from the late seventeenth century onwards, the English constitution as embodied in the common law had, since time immemorial, striven to protect the fundamental rights of Englishmen and women, which included the right to personal liberty. The common law had supplied the writ of habeas corpus, which secured the provision of Magna Carta, that no freeman be imprisoned save by the judgment of a jury of his peers. In the course of the seventeenth century, the Whig version ran, kings with an absolutist bent sought to undermine ancient liberties, by claiming prerogative powers to imprison without trial, and by appointing supine judges who would not protect people's liberties. It took the triumph of Parliament to restore and perfect them. For William Blackstone, one of the key statutes which secured ‘the complete restitution of English liberty’ was the Habeas Corpus Act of 1679, ‘that second magna carta’. As Blackstone put it: ‘Magna carta only, in general terms, declared, that no man shall be imprisoned contrary to law: the habeas corpus act points him out effectual means, as well to release himself, though committed even by the king in council, as to punish all those who shall thus unconstitutionally misuse him.’
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Failinger, Marie. "Parallel Justice: Creating Causes of Action for Mandatory Mediation." University of Michigan Journal of Law Reform, no. 47.2 (2014): 359. http://dx.doi.org/10.36646/mjlr.47.2.parallel.
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The American common law system should adopt court-connected mandatory mediation as a parallel system of justice for some cases that are currently not justiciable, such as wrongs caused by constitutionally protected behavior. As evidence that such a system is practical, this Article describes systemic and ethical parallels between court-connected mediation and the rise of the equity courts in medieval England, demonstrating that there are no insurmountable practical objections to the creation of “mediation-only” causes of action. The Article then explores the constitutional concerns surrounding the idea of “mandatory mediation-only” causes of action, using constitutional hate speech and invasion of privacy cases to test the validity of these concerns.
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Tierney, Stephen. "ENGLAND – A New Wave of Constitutional Reform for the UK?" European Public Law 15, Issue 3 (September 1, 2009): 289–94. http://dx.doi.org/10.54648/euro2009023.
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Hulsebosch, Daniel J. "The Ancient Constitution and the Expanding Empire: Sir Edward Coke's British Jurisprudence." Law and History Review 21, no. 3 (2003): 439–82. http://dx.doi.org/10.2307/3595117.
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One of the great, unrecognized ironies in Anglo-American constitutional history is that Sir Edward Coke, the seventeenth-century mythologist of the “ancient constitution” and the English jurist most celebrated in early America, did not believe that subjects enjoyed the common law and many related rights of Englishmen while overseas. “The common law,” Coke declared in Parliament in 1628, “meddles with nothing that is done beyond the seas.” The ancient constitution was an English constitution and, though non-English subjects of the English king could enjoy its liberties and privileges while in England, it did not apply to anyone outside that realm. The jurisprudence that gave intellectual shape to colonial resistance before, and to notions of the rule of law after, the American Revolution was not intended by its primary author to benefit Americans. Whether or not the ancient constitution existed time out of mind, it did not extend to land out of sight.
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Baker, John. "The Unwritten Constitution of the United Kingdom." Ecclesiastical Law Journal 15, no. 1 (December 13, 2012): 4–27. http://dx.doi.org/10.1017/s0956618x12000774.
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There has been much talk of constitutional reform in recent years, but the changes that have actually been taking place have often differed markedly from those that the Government has professed to espouse and have shaken the foundations of the previous system without following any coherent overall plan. Written constitutions are not without shortcomings; the conventions that held the old British constitution in place are in any case difficult to codify or enforce. But a pressing problem with an unwritten constitution is that there is no special mechanism for constitutional change. Recent reforms have therefore become associated with short-term political expediency and spin. The cure is not simple.1As a tribute to Professor Sir John Baker QC, who has served as a member of the Editorial Board since the Ecclesiastical Law Journal's foundation and energetically continues to do so,2 I am pleased to reproduce the lightly edited text of his British Academy Maccabbaean Lecture.3 Delivered in 2009, though still topical today, it provides a cautionary critique of the direction of travel in the evolution of the United Kingdom's unwritten constitution which I hope will serve as a prelude to an occasional series of articles and comment in the pages of this Journal considering the role of the spiritual within the constitution and the established nature of the Church of England in the twenty-first century. Matters that have been ignored or marginalised in the recent constitutional revolution include the role of the Prime Minister in the appointment of bishops and archbishops and the ecclesiastical patronage exercised by the Lord Chancellor. [Editor]
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Doe, Norman. "The Welsh Church Act 1914: A Century of Constitutional Freedom for the Church in Wales?" Ecclesiastical Law Journal 22, no. 1 (December 31, 2019): 2–14. http://dx.doi.org/10.1017/s0956618x19001674.
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The approach of the centenary of the disestablishment of the Church of England in Wales offers a good opportunity to reflect on legal aspects of the life of the Church in Wales since 1920. Religious equality had been the principal stimulus for the Welsh Church Act 1914. This statute, together with the release of the Welsh dioceses by the Archbishop of Canterbury to form a separate Anglican province, necessitated the formulation of a constitution for the Church. Innovation was avoided, and continuity protected. ‘Vestiges of establishment’ continued, in burial and marriage, as the result of political expediency. The original structure of the Constitution continues to this day – a complex of various instruments. Change has been piecemeal. The Church still has no modernised body of canon law and its soft law has increased dramatically. However, understandings about the purposes of the Constitution have changed, and the demand for constitutional change has quickened recently, particularly since the Harries Review of the Church in Wales in 2012.
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Edwards, Denis J. "The Treaty of Union: more hints of constitutionalism." Legal Studies 12, no. 1 (March 1992): 34–41. http://dx.doi.org/10.1111/j.1748-121x.1992.tb00455.x.
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The Court of Session decision in Pringle, Petitioner again raises the issue of what constitutional effect, if any, is to be attributed to the Treaty of Union between Scotland and England. Specifically, is it competent for the Court of Session to find that an Act or a provision in an Act of the United Kingdom Parliament is invalid because of an inconsistency with an Article of the Treaty of Union as enacted in Scots law by the former Scottish Parliament in the Union With England Act 1707 (c 7)? This is the first case since MacCormick v Lord Advocate in which the Inner House of the Court of Session has commented on this favourite question of Scottish constitutional lawyers and, although hardly answering the question any more revealingly than it did in that case, the court's latest reservation of opinion on the answer is worthy of some further discussion.
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Orr, D. Alan. "A Prospectus for a “New” Constitutional History of Early Modern England." Albion 36, no. 3 (2004): 430–50. http://dx.doi.org/10.2307/4054367.
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The study of English constitutional history has fallen on hard times. Once an intellectually thriving field, constitutional history now conjures up visions of bad tweed and bow ties coupled with dryly-legalistic discussions of statutes, charters, parliamentary debates, Year Books, and legal reports. Indeed, whether Whig, Neo-Whig, Revisionist, or Post-Revisionist in orientation, constitutional history has traditionally concerned itself with the “activity of government”; it has emphasized the formal structures of government, their historical origins, their changing composition, their evolving roles, and functions. These formal structures, the Crown, Parliament, the Council, the established church, and the law courts, together constituted the sinews of government. Constitutional controversy arose when the respective roles and functions of these formal structures came into conflict. Accordingly, constitutional historians became experts on the anatomy and development of the particular organs of government and their changing roles yet they were often unable to see the broader conceptual forest in which they were standing. As a result, some critics have lampooned constitutional history and its leading proponents as lacking theoretical engagement and being overly preoccupied with the minutiae of government at the expense of conceptual sophistication and breadth of vision.
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Orr, D. Alan. "England, Ireland, Magna Carta, and the Common Law: The Case of Connor Lord Maguire, Second Baron of Enniskillen." Journal of British Studies 39, no. 4 (October 2000): 389–421. http://dx.doi.org/10.1086/386226.
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The treason trial of Connor Lord Maguire, second baron of Enniskillen, in February 1645 brought into focus competing conceptions of the constitutional relationship of England and Ireland. Maguire had been implicated in the plot to seize Dublin Castle on 23 October 1641 during the Irish revolt of that year and was tried in early 1645 before a Middlesex jury. The key issue of the trial was whether Maguire, as a peer of Ireland, having committed treasonable acts in Ireland and elsewhere and being brought “into England against his will, might be lawfully tryed … in the King's Bench at Westminster by a Middlesex Jury, and outed of his tryal by Irish Peers of his condition by the statute of 35 Henry VIII c. 2.” In the earl of Stafford's trial almost four years earlier, the defense had consistently assumed a position that will be termed Irish constitutional exceptionalism. Both Strafford and other apologists for his rule as Lord Deputy in Ireland during the 1630s adopted this constitutional stance in response to proceedings against them in both the English and Irish Parliaments during 1641. It held that while Magna Carta and the common law generally held sway in Ireland, because of circumstances unique to that particular kingdom, significant exceptions existed with regard to the legal rights and privileges these legal instruments conferred on the king's Irish subjects. In contrast, the case for Maguire rested on a view of the constitutional relationship of England and Ireland that emphasized a more closely shared heritage of legal privileges for both commoners and peers as guaranteed by Magna Carta and the common law—a position best characterized as constitutionalist.
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Bhana, D. "The future of the doctrine of economic duress in South African contract law: The influence of Roman-Dutch law, English law and the Constitution of the Republic." Acta Juridica 2021 (2021): 107–40. http://dx.doi.org/10.47348/acta/2021/a5.
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In England, the contractual doctrine of economic duress is an important mechanism for curbing abuses of superior bargaining power. In contrast, in South Africa, the courts are yet to articulate a definitive doctrine. In this article, I argue for a twenty-first century South African doctrine of economic duress that is delineated primarily in terms of South Africa’s foundational constitutional value of equality. For this purpose, I consider English contract law and show how it is a concern for ‘equity’ that has been central to its treatment of economic duress. I then highlight the normative limitations of the English doctrine, but argue that the English legal experience of economic duress remains valuable for corresponding developments in the modern South African commercial context, especially in light of the latter’s post-apartheid constitutional framework, which provides the normative content of baseline standards that must inform its doctrine of economic duress.
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Beckerman, John S. "Procedural Innovation and Institutional Change in Medieval English Manorial Courts." Law and History Review 10, no. 2 (1992): 197–252. http://dx.doi.org/10.2307/743761.
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In England during the twelfth, thirteenth, and fourteenth centuries, the royal courts cast a longer and longer shadow over private and local jurisdictions. By a series of steps embracing much innovation, the custom of the king's court gradually became the common law of England, and the royal courts asserted their supremacy over other jurisdictions in many areas. Foremost among these were disputes over freehold land and cases involving felonies. It has been suggested that the royal innovations’ jurisdictional effects on private courts were “neither intended nor foreseen.” Nonetheless, they reduced private jurisdictions—with the exception of the palatinates—to constitutional insignificance during the thirteenth century. Occasional baronial objections, such as that enshrined in clause thirty-four of Magna Carta or the bluff waving of a rusty sword at a quo warranto inquest do not disguise this basic fact of English legal and constitutional history.
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Maćkowska, Katarzyna. "PRZESTĘPSTWA I KARY W REGULACJACH PRAWNYCH NOWOANGIELSKICH KOLONII W AMERYCE PÓŁNOCNEJ W XVII WIEKU." Zeszyty Prawnicze 11, no. 2 (December 21, 2016): 279. http://dx.doi.org/10.21697/zp.2011.11.2.14.
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CRIMES AND PUNISHMENTS IN LEGAL REGULATIONS OF NEW ENGLAND COLONIES IN THE 17TH CENTURY Summary The subject of this article pertains to a colonial criminal law of New England colonies in 17th century. There are few studies on this matter, however the dominating aspects relates to a history of constitutional solutions. Comparison between normative aspect and examples of their application undoubtedly confirms some undemocratic background of colonial life. Moreover, contemporary interest in historical sciences seems to be increasing what should be sufficient reason for refreshing the older researches. Although New England colonies were founded under specific circumstances implied by relation between state and religion, they manager to set up a public system of criminal law. Nonetheless, colonists, while mainly focused on constitutional basis for their self-government, they used English and biblical paradigms for criminal regulations. One may find, however, that colonial documents consisted of rules describing a meaning of selected crimes and created relatively systematic catalogues. Detailed problems here analyzed are as following: general features of colonial criminal laws, crimes against a state and a government, against religion, against an individual and a property, against a family, crimes connected to administrative indications and selected instances of penalties.
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Korporowicz, Łukasz Jan. "Teaching Comparative Law in Eighteenth-Century England: Thomas Bever as a Comparative Lawyer as Exemplified by his Lectures on Polish Law and the Constitution." Acta Universitatis Lodziensis. Folia Iuridica 99 (June 30, 2022): 123–35. http://dx.doi.org/10.18778/0208-6069.99.09.
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The origins of comparative legal studies usually date back to the late 19th century. These kind of studies, however, were undertaken on a regular basis much earlier. Among the first serious adherents of the idea of comparing different legal systems was Thomas Bever. Bever was a civilian lawyer who successfully combined practice in the ecclesiastical and admiralty courts of England with Oxford’s fellowship and teaching duties. In the 1760s and 1770s, Bever was teaching the Civil law course on behalf of (or independently of) the current holders of the Regius Professorship. His lectures, unique in many aspects, were crowned with a set of comparative lectures. Bever was presenting the constitutional and legal systems of several European countries, including Poland, both in historical and modern dimensions. The aim of this article is to discuss Bever’s attitude towards comparative legal studies as well as to present his comparative method by reference to part of his lectures devoted to the old Polish law and constitution.
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Mak, Chantal. "The Constitutional Momentum of European Contract Law On the Interpretation of the DCFR in Light of Fundamental Rights." European Review of Private Law 17, Issue 4 (August 1, 2009): 513–29. http://dx.doi.org/10.54648/erpl2009035.
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ABSTRACT: This paper presents a constitutional analysis of the Draft Common Frame of Reference (DCFR) that has been prepared by a network of European legal scholars. The central question is to what extent the DCFR reflects fundamental values shared by the Member States. In order to answer this question, this paper analyses the relevant DCFR provisions in the light of fundamental rights, such as those laid down in national Constitutions and international treaties. Comparative remarks are made on the effects of fundamental rights in the national contract laws of various Member States (the Netherlands, Germany, England, and Italy), since the DCFR provisions that refer to fundamental rights correspond to some typical cases (or Fallgruppen) of fundamental rights application that have arisen in these countries. The structure of the analysis accordingly follows three main categories: the interpretation of the rules of contract law, non-discrimination in contractual relationships, and the validity of the contract. Attention is paid to direct and indirect effects of fundamental rights in European contract law cases as well as to the legal-political implications of these effects. On the basis of the comparative analysis, finally, it is submitted that choices will have to be made regarding the extent to which legislators and judges have to take into account the values expressed in these rights and, importantly, which form should be given to the provisions of a Common Frame of Reference in order to reach the highest possible level of protection of these values in contract law throughout Europe. Only then will the further harmonisation of European contract law truly contribute to the establishment of a European Constitution.
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Brazier, Rodney. "The Constitution of the United Kingdom." Cambridge Law Journal 58, no. 1 (March 1999): 96–128. http://dx.doi.org/10.1017/s0008197399001063.
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BEFORE the dawn of the millennium new legislative and executive authorities will have been established in Edinburgh, Cardiff and (subject to further political and other progress) in Belfast. This article analyses the nature of these constitutional initiatives, and examines their place in the unitary state which is the United Kingdom. It begins by tracing the history of constitutional union between England, Wales, Scotland, and Ireland. The legal effect of the 1998 devolution statutes is examined, in particular on the legal sovereignty of the United Kingdom Parliament. A triple constitutional and legal lock exists in the Scotland Act 1998 to ensure that the devolution settlement is the final step away from the pure unitary state which has enfolded Scotland in Great Britain. The nature and likely success of that lock are analysed in some detail. The lawmaking powers of the Scottish Parliament, the Welsh Assembly, and the Northern Ireland Assembly are assessed. The similarities and differences between each of the three devolved governments and the British Government are highlighted, and consequences and possible lessons for future government-making at Westminster are drawn. The article concludes with a peer into the possible constitutional futures for the United Kingdom.
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von Samsonow, Wladimir. "Executive Powers During the covid-19 Epidemic." European Journal of Comparative Law and Governance 9, no. 1 (January 28, 2022): 56–78. http://dx.doi.org/10.1163/22134514-bja10028.
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Abstract This article aims to explore the consequences of covid-19 related laws upon democracy, concentrating on the separation of powers and the system of checks and balances. To analyse the effectiveness of measures, a comparison between England-Wales and Germany is made, in order to compare how two countries with similar demographic and economy, but different constitutional and political systems, have dealt with the epidemic. The main question that is being asked and answered is whether a constitutional crisis has taken place. And finally, the analysis how the judiciary has been the most helpful branch in the separation of powers to uphold a system of checks and balances during the epidemic in both England-Wales and Germany.
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Wormald, Patrick. "Anglo-Saxon Law and Scots Law." Scottish Historical Review 88, no. 2 (October 2009): 192–206. http://dx.doi.org/10.3366/e0036924109000857.
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Patrick Wormald used legal material buried deep in volume i of the Acts of the Parliaments of Scotland to argue for a comparatively maximalist view of early Scottish royal government. The paper compares this Scottish legal material to two Old English codes to show that there existed in Scotland structures of social organisation similar to that in Anglo-Saxon England and a comparable level of royal control over crime by the early eleventh century. The model of a strong judicial regime in the Anglo-Saxon kingdom, put forward fully by Wormald in volume i of The Making of English Law, suggests that the kingdom of the Scots could have been inspired by (or followed a parallel trajectory to) its Anglo-Saxon neighbour in its government's assumption of rights of amendment previously controlled by kin-groups. English influence on Scottish legal and constitutional development can therefore be seen in the tenth and eleventh centuries as much as it can in the twelfth and thirteenth centuries. The paper also suggests methods of examining the legal material in volume i of the Acts of the Parliaments of Scotland and effectively clears the way for further study of this neglected corpus of evidence.
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Rose, Jacqueline. "A Godly Law? Bulstrode Whitelocke, Puritanism and the Common Law in Seventeenth-Century England." Studies in Church History 56 (May 15, 2020): 273–87. http://dx.doi.org/10.1017/stc.2019.15.
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Debates surrounding both the church and the law played an important role in the conflicts that marked seventeenth-century England. Calls for reform of the law in the Civil Wars and Interregnum complicated the apparent relationship between puritanism and the common law, as the first fragmented and the second came under attack in the 1640s and 1650s. This article first analyses the common lawyer Bulstrode Whitelocke's historical and constitutional writings that defended the common law against demands for its reform and argued that its legitimacy derived from its origins in, and resemblances to, the law of Moses. Refraining from the radical application of this model employed by some contemporaries, Whitelocke instead turned to British history to make his case. This article then examines Whitelocke's views of the relationship between common law and ecclesiastical jurisdiction in his own day, showing how, both as a lawyer and as a puritan, he navigated laws demanding religious conformity. Whitelocke's career therefore demonstrates how lawyers could negotiate the fraught relationship between the church and the law in the aftermath of the reconfigurations provoked by the Civil Wars and Restoration.
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Kwan, Martin. "Is the Hong Kong Courts’ Ability to Refer to Foreign Authorities Unrestrained?" Amicus Curiae 4, no. 1 (November 2, 2022): 71–91. http://dx.doi.org/10.14296/ac.v4i1.5488.
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Once in a while there is a debate on whether Hong Kong courts should be freely able to refer to foreign authorities, indicating the lack of firm consensus. In light of the need for clarifications, this note affirms the court’s ability to refer to foreign authorities for three main reasons. Constitutionally, this note is the first to raise that Hong Kong courts have a unique ‘constitutional assurance’ of their ability to refer to foreign cases. By comparison, other jurisdictions, like England & Wales and Singapore which do not share the same assurance, have even further restrained their power with Practice Directions. Professionally, the courts will not blindly rely on foreign authorities given the jurisdictional differences. Practically, Hong Kong has a relatively smaller case pool, so the practical insights from the foreign authorities are very useful. Given these three justifications, there should not be any doubt over the courts’ power and practice for such.
Keywords: common law; Singapore; English law; comparative law; case law; precedent; India; judiciary; legal method.
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Macnair, Mike. "Vicinage and the Antecedents of the Jury." Law and History Review 17, no. 3 (1999): 537–90. http://dx.doi.org/10.2307/744381.
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The origins of trial by jury have been the subject of an extensive debate. The traditional approach to the creation of the “palladium of liberty” saw the jurors as lay judges and located their origins in the lay judges of Anglo-Saxon England, continuing through the survival of the “ancient constitution.” An alternative approach, that of Heinrich Brunner, found wide acceptance from the end of the last century and until recently. Brunner detected the origins of the jury in fiscal inquiries imposed by strong monarchs, reversing the constitutional politics of the older view. At present, the wheel has turned back toward judicial character and origins in general early medieval practice. The purpose of this article is to take a new look at the issue by approaching it from a different angle: the requirement that jurors should come de vicineto, from the locality. This approach has produced the following observations.
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Starck, Christian. "State duties of protection and fundamental rights." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 3, no. 1 (July 10, 2017): 20. http://dx.doi.org/10.17159/1727-3781/2000/v3i1a2882.
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Duties of protection are duties of the state to protect certain legal interests of its citizens. They cover the interests of life, health, freedom and property and also protect some other interests and certain constitutionally recognised institutions. State duties of protection must be considered in connection with fundamental rights. The foundations of modern constitutionalism and attendant procedures are essential to develop guidelines for a constructive critique of the jurisprudence of the Constitutional Court. This is done with reference to the recent history of France, Germany and England. The historical excursus reveals that a single theory underlies the variety of constitutional states. The development of the constitutional state gave rise to the significance of the preservation of freedom through the maintenance of law and the separation of powers. This has given rise to various legal devices, based also in part on experience with moderate rule and earlier theories of the imperium limitatum.A textual analysis of the German Basic Law is undertaken to determine whether and how the duties of protection are expressly created. Furthermore, the duties that have been discovered in the Basic Law by the Federal Constitutional Court are considered. These duties include the protection of human life and health, personal freedom, the right to autonomous development of one's personality, freedom of science, research and teaching, marriage and the family, children, mothers, professional freedom, property and the protection of German nationals against foreign states. Finally the justification of such duties and the constitutional control of the manner of protection are considered.In a final section a critique of relevant constitutional jurisprudence is undertaken. It is argued that claims to protection cannot be directly binding law. They presuppose legislation. If statutory protection is connected with infringements of third-party fundamental rights, the principle of proportionality can be adopted to test whether the protection is effective. Insofar as protection can be achieved without infringements of rights, one must attempt to test the effectiveness of protection by some other means. Where the legislature omits to protect at all, the court should limit itself to establishing the existence of a duty and to querying its non-fulfilment. The Court may not pass protective regulations or impose a duty to pass specific regulations. Where general statutory norms apply, protective duties can be realised through the socalled indirect third-party effect of fundamental rights. In its reaching its decision, the German Federal Constitutional Court is responsible for preserving the political discretion of the legislature in protecting interests and remembering the structural distinction between "hard" defensive rights and "soft" protective duties in order to prevent the erosion of the directly binding nature of defensive rights.
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Witte, John. "A NEW MAGNA CARTA FOR THE EARLY MODERN COMMON LAW: AN 800TH ANNIVERSARY ESSAY." Journal of Law and Religion 30, no. 3 (October 2015): 428–45. http://dx.doi.org/10.1017/jlr.2015.30.
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AbstractThis article examines the influence of the Magna Carta on the development of rights and liberties in the Anglo-American common law tradition, especially in the seventeenth century. Originally issued by King John of England in 1215, the Magna Carta set forth numerous prototypical rights and liberties that helped to shape subsequent legal developments in England, America, and the broader Commonwealth. The Magna Carta served as an inspiration for seventeenth-century English jurists, like Sir Edward Coke, and Puritan pamphleteers, like John Lilburne, who advocated sweeping new rights reforms on the strength of the charter. It also inspired more directly the new bills of rights and liberties of several American colonies, most notably the expansive 1641 Body of Liberties of Massachusetts crafted by Nathaniel Ward, which anticipated many of the constitutional rights formulations of eighteenth- and nineteenth-century America.
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Merrill, Thomas W. "The Rhetoric of Rebellion in Hume's Constitutional Thought." Review of Politics 67, no. 2 (2005): 257–82. http://dx.doi.org/10.1017/s0034670500033519.
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In hisHistory of England, David Hume suggests that the doctrine of resistance should be concealed from the populace. But this suggestion in the very public location of theHistoryhas the effect of revealing this doctrine as much as concealing it. How should we understand this perplexing rhetorical strategy? Hume's paradoxical rhetoric is a symptom of the problem that the right of rebellion poses for every political society. On the one hand, the right of rebellion undeniably exists; on the other, no regime can recognize that right fully. The problem of rebellion thus reveals the simultaneous necessity and limitations of law. Hume's playful, transparent rhetoric is intended to compel us to reflect upon the deeper tension between liberty and authority in every political society and to furnish us with an example of how that tension might be prudently and honestly handled.At a pivotal moment in theHistory of England, Hume writes: “If ever, on any occasion, it were laudable to hide truth from the populace, it must be confessed, that the doctrine of resistance affords such an example; and that all speculative reasoners ought to observe, with regard to this principle, the same cautious silence which the laws, in every species of government, have ever prescribed to themselves.” On its face, this is a recommendation that the “doctrine of resistance,” perhaps the most important principle of modern liberalism, be kept a secret, hidden away from the people at large.
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GAILMARD, SEAN. "Imperial Politics, English Law, and the Strategic Foundations of Constitutional Review in America." American Political Science Review 113, no. 3 (April 10, 2019): 778–95. http://dx.doi.org/10.1017/s0003055419000212.
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In the colonial period of American history, the British Crown reviewed, and sometimes nullified, acts of colonial assemblies for “repugnancy to the laws of England.” In this way, Crown review established external, legal constraints on American legislatures. I present a formal model to argue that Crown legislative review counteracted political pressure on imperial governors from colonial assemblies, to approve laws contrary to the empire’s interests. Optimal review in the model combines both legal and substantive considerations. This gives governors the strongest incentive to avoid royal reprisal by vetoing laws the Crown considered undesirable. Thus, review of legislation for consistency with higher law helped the Crown to grapple with agency problems in imperial governance, and ultimately achieve more (but still incomplete) centralized control over policy. I discuss the legacy of imperial legislative review for early American thinking about constitutional review of legislation by courts.
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Razaana Denson. "A Comparative Exposition of the Law of Husband and Wife in terms of Islamic Law, South African Law and the Law of England and Wales." Obiter 41, no. 4 (March 24, 2021): 704–50. http://dx.doi.org/10.17159/obiter.v41i4.10485.
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The primary concern of this article is a comparative analysis of marriage law in three legal systems – namely, Islamic law, South African law and English law. The similarities and differences between these legal systems are highlighted. The comparative analysis demonstrates that although there are similarities in the three legal systems, the differences outweigh the similarities. This begs the question whether Islamic law (Muslim personal law in general and family law in particular) can be recognised and accommodated and implemented in the South African and English legal systems (both constitutional democracies) without compromising the principles of Islamic law, while at the same time upholding the rights contained in the Bill of Rights. To this end, a comparative analysis is undertaken of the law of marriage that entails a discussion, inter alia, of betrothal (engagement), the legal requirements for a marriage, as well as the personal and proprietary consequences of a marriage as applicable in Islamic law, South African law and English law.
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Key, Newton. "The “Boast of Antiquity”: Pulpit Politics Across the Atlantic Archipelago during the Revolution of 1688." Church History 83, no. 3 (July 31, 2014): 618–49. http://dx.doi.org/10.1017/s0009640714000584.
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John Locke and many others noted the vibrant political commentary emanating from the pulpit during the Glorious Revolution. Preachers from the full confessional spectrum in England, and especially in Scotland, Ireland, and the colonies, used occasional or state sermons to explain contemporary upheavals from the perspective of God's law, Natural law, and Civil law. Most surprising is the latter, clerical reference to civil history and ancient origins, which preachers used to answer contemporary questions of conquest and allegiance. Clergy revisited the origins and constitutional roots of the Britons, Anglo-Saxons, Scots, and Irish, and deployed histories of legendary kings and imaginary conquests to explain and justify the revolutionary events of 1688–1692. Sermons of this revolutionary era focused as much on civil as on sacred history, and sought their true origins in antiquity and the mists of myth. Episcopalian preachers, whether Church of Ireland, Scottish Episcopalian, or Church of England, seem to have been especially inspired by thanksgiving or fast days memorialized in the liturgical calendar to ponder the meaning of a deep historical narrative. Scots, Irish, and Massachusetts clergy claimed their respective immemorialism, as much as the English did theirs. But, as they re-stated competing Britannic constitutions and origin myths explicitly, they exposed imperial rifts and contradictions within the seemingly united claim of antiquity. By the beginning of the next reign and century, state sermons depended more upon reason and less upon a historicized mythic antiquity.
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Witte, John. "The Archbishop and Marital Pluralism: An American Perspective." Ecclesiastical Law Journal 10, no. 3 (August 12, 2008): 344–47. http://dx.doi.org/10.1017/s0956618x08001439.
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The Archbishop of Canterbury, Dr Rowan Williams (head of the worldwide Anglican Communion), set off an international firestorm on 7 February 2008 by suggesting that some accommodation of Muslim family law was ‘unavoidable’ in England. His suggestion, though tentative, prompted more than 250 articles in the world press within a month, the vast majority denouncing it. England will be beset by ‘licensed polygamy’, ‘barbaric procedures’ and ‘brutal violence’ against women and children, his critics argued, all administered by ‘legally ghettoized’ Muslim courts immune from civil appeal or constitutional challenge. Consider Nigeria, Pakistan and other former English colonies that have sought to balance Muslim sharia with the common law, other critics added. The horrific excesses of their religious courts – even calling the faithful to stone innocent rape victims for dishonouring their families – prove that religious laws and state laws on the family simply cannot coexist. Case closed.
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Shute, Stephen. "With and Without Constitutional Restraints: A Comparision Between the Criminal Law of England and America." Buffalo Criminal Law Review 1, no. 2 (January 1, 1998): 329–48. http://dx.doi.org/10.1525/nclr.1998.1.2.329.
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Cranmer, Frank. "Church-State Relations in the United Kingdom: A Westminster View." Ecclesiastical Law Journal 6, no. 29 (July 2001): 111–21. http://dx.doi.org/10.1017/s0956618x00000570.
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In any discussion of church-state relations in the United Kingdom, it should be remembered that there are four national Churches: the Church of England, the (Reformed) Church of Scotland, the Church in Wales (disestablished in 1920 as a result of the Welsh Church Act 1914) and the Church of Ireland (disestablished by the Irish Church Act 1869). The result is that two Churches are established by law (the Church of England and the Church of Scotland) and enjoy a particular constitutional relationship with the state, while the other Churches and faith-communities (the Roman Catholics, the Free Churches, the Jews, Muslims, Hindus, Sikhs and others) have particular rights and privileges in particular circumstances.
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Campbell, Bruce A. "Social Federalism: The Constitutional Position of Nonprofit Corporations in Nineteenth-Century America." Law and History Review 8, no. 2 (1990): 149–88. http://dx.doi.org/10.2307/743990.
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The importance of voluntary associations is apparent to all who study the development of American society in the nineteenth century. Observations made by the perceptive nineteenth-century traveler Alexis de Tocqueville have become an obligatory cliché in historical writing on the subject:Americans of all ages, all conditions, and all dispositions constantly form associations. They have not only commercial and manufacturing companies,… but associations of a thousand other kinds, religious, moral, serious, futile, general or restricted, enormous or diminutive. The Americans make associations to give entertainments, to found seminaries, to build inns, to construct churches, to diffuse books, to send missionaries to the antipodes; in this manner they found hospitals, prisons, and schools. If it is proposed to inculcate some truth or to foster some feeling by the encouragement of a great example, they form a society. Wherever at the head of some new undertaking you see the government in France, or a man of rank in England, in the United States you will be sure to find an association.
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Madarász, Fanni. "The Historiographical Typology of the English Royalism in the First Half of the Seventeenth Century." Specimina Nova Pars Prima Sectio Medaevalis 10 (April 27, 2022): 231–50. http://dx.doi.org/10.15170/spmnnv.2019.10.12.
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The topic of the present paper provides an insight into the royalist movement of the seventeenth century England, pre-eminently focusing on the Civil War era. Royalist, or constitutional royalist is a term to describe a moderate political group of the 1640s, concentrating around King Charles I, as his advisors. Recent results identified and categorized some of the main political thinkers of this faction. However, this categorization still has its own limits and is in the need of further clarification. The study is meant to highlight the defining elements of the royalist political discourse, including the notions of the rule of law, the ancient constitution and absolutism. The present paper also aims to investigate how the pre-existing political theories and doctrines from the Medieval and Tudor-era influenced the narrative of those, who remained to be loyal to the king, amidst the turbulence of the Civil War.
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Chaile, Roshan. "The Proportionality Principle and the Kable Doctrine: A New Test of Constitutional Invalidity?" Global Journal of Comparative Law 1, no. 2 (2012): 163–93. http://dx.doi.org/10.1163/2211906x-00102002.
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In Kable v Director of Public Prosecutions (NSW) the High Court of Australia declared that the requirements of Chapter III of the Australian Constitution prohibited a State legislature from conferring powers on a State court that were repugnant or incompatible with their status as repositories of federal judicial power. This was a significant constitutional watershed; it had never previously been suggested that the protections contained in Chapter III applied to State courts. Recent applications of Kable, however, have given rise to concerns that the principles to be derived from that case are unclear. This is a serious deficiency given that State legislatures, not bound by a separation of powers doctrine at a State level, may choose to confer important decision-making functions on non-judicial bodies. This article explores whether a bipartite inquiry, such as that employed in the rights jurisprudence in both England and Strasbourg, may clarify the meaning and scope of the principle enunciated in Kable. It commences by formulating a mode of inquiry which is intended to assist courts in determining whether a legislative act impairs the institutional integrity of a State court. It then argues that the principle of proportionality should be employed to determine whether a prima facie impairment may nonetheless be excusable. Such a conclusion would be reached where it can established that the legislative act is necessary in a democratic society, in the sense that it addresses a pressing social need. The introduction of this limited ground of justification promotes greater clarity and ensures that an appropriate balance is maintained between State legislative autonomy and the institutional integrity of State courts.
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Harris, Tim. "The People, the Law, and the Constitution in Scotland and England: A Comparative Approach to the Glorious Revolution." Journal of British Studies 38, no. 1 (January 1999): 28–58. http://dx.doi.org/10.1086/386180.
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Despite the growing interest in recent years in taking a British approach to the problems of the first half of the seventeenth century, Restoration historians have been slow to follow the trend. Instead, the historiographical traditions for Charles II's and James II's three kingdoms of England, Scotland, and Ireland have remained largely independent; rather than coming closer together, if anything they seem to be growing further apart. We see this in particular with the historiographies of the Glorious Revolution in Scotland and England, which have become curiously “out of sync.” It used to be the case that the Revolution in England was seen as a most unrevolutionary affair, a bloodless palace coup brought about as much by the Tories as the Whigs; by this account, James was not overthrown for breaking his contract with the people, but was regarded as having abdicated, and the framers of the Revolution settlement simply sought to vindicate ancient rights and liberties (as they put it in the Declaration of Rights), rather than assert any new constitutional principles. If the Revolution in England tended to be seen in a conservative, perhaps even Tory context, the radical, Whig revolution was still to be found, but north of the border, in Scotland. For it was in Scotland where the Whigs were unequivocally the architects, where James was seen as having forfeited his crown by his arbitrary and tyrannical style of government, and where a truly revolutionary settlement in church and state was established.
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Attreed, Lorraine. "Arbitration and the Growth of Urban Liberties in Late Medieval England." Journal of British Studies 31, no. 3 (July 1992): 205–35. http://dx.doi.org/10.1086/386006.
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In December 1448, the city of Exeter agreed with the bishop and dean and chapter of the cathedral church to abide by the arbitration of two local magnates who settled a complex dispute over urban jurisdiction. That the arbitrators decided against the city, which suffered a slight constitutional setback as a result, is only one of several important conclusions to be drawn from a study of the dispute and its resolution. The nature of the argument and the procedures by which both parties sought to resolve it shed light on the character of urban constitutional growth in the later Middle Ages, on legal procedures and what medieval people thought about the law, and on the lengths they were willing to go to assure a decision that was as favorable as possible without poisoning relations between two institutions that coexisted within city walls. The case also illustrates the important role arbitration played in dispute settlement and reveals this method to be as viable an alternative as recourse to the common-law and equity courts of the royal government.Exeter's case is unique in that so much written evidence survives to testify to the financial investments and political aims of both parties involved. Comparisons will be drawn to other boroughs that endured similar jurisdictional disputes in the fifteenth century, but their evidence is far less revealing of decision and motivation than that remaining for Exeter. Although many of the major documents associated with the case have been in print for over a century, and examined in some detail in a brief monograph published over fifty years ago, the nature of the records has focused more attention on the city's participation than on that of the cathedral.
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Edlin, Douglas. "A Constitutional Right to Judicial Review: Access to Courts and Ouster Clauses in England and the United States." American Journal of Comparative Law 57, no. 1 (January 1, 2009): 67–102. http://dx.doi.org/10.5131/ajcl.2008.0003.
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Banović, Damir. "About John Austin’s Analytical Jurisprudence: The Empirical-Rationalist Legal Positivism." International and Comparative Law Review 21, no. 1 (June 1, 2021): 242–61. http://dx.doi.org/10.2478/iclr-2021-0010.
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Summary This article deals with analytical jurisprudence topics presented in John Austin’s work, his predecessors, and its influence on the contemporary theory of law. The article analyses his analytical method, understanding of what the method implies, and its application in understanding law as a social phenomenon. Not only does the article analyse the law phenomenon, but it also presents his views on similar phenomena in law, such as international and constitutional law, the phenomenon of sovereignty and a sovereign, and the principle of general utility as one of the moral principles. His theory of law was one of the most significant theoretical approaches in England of the 19th century, and also constituted the baseline for new conceptions and the basis of critical analyses of later positive law theories. Moreover, his work provides a solid ground for explanations of individual branches of law, especially criminal law. Finally, the article also presents a critical analysis of his approach, useful and important findings, and the perspectives for further development of the theory of law, especially in the domain of his analytical, empirically oriented and descriptive method.
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Zitzke, Emile. "Transforming the Law on Psychiatric Lesions." Stellenbosch Law Review 2021, no. 2 (2021): 253–71. http://dx.doi.org/10.47348/slr/2021/i2a4.
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In this article, I trace the development in the law of delict of recognising general damages claims on account of psychiatric lesions with the aim of making suggestions on how to transform it. Using the tragic case of Michael Komape as a springboard for the discussion, I argue that even though the Supreme Court of Appeal has recently brought clarity on the law on psychiatric lesions, more transformative work still needs to be done. More specifically, this article contends that the constitutional right to bodily and psychological integrity might require us to rethink the high evidentiary threshold that courts have set for proving the element of harm in cases related to psychiatric lesions. I argue that this can be done in at least three ways: First, by very cautiously bringing about a development that would involve protecting victims of psychological harm whose expert witnesses are shown to be inadequate despite all other facts indicating the existence of a psychiatric lesion. Secondly, by lowering the requirement of “recognised psychiatric lesion” to “grievous mental injury”, in line with similar arguments made in England. Thirdly, and most controversially, by acknowledging that perhaps the time has come for our law to recognise claims for so-called “grief in the air”.
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Forbath, William E. "The Long Life of Liberal America: Law and State-Building in the U.S. and England." Law and History Review 24, no. 1 (2006): 179–92. http://dx.doi.org/10.1017/s0738248000002303.
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Reports of the Strange Death of Liberal America are greatly exaggerated. James Henretta's essay of that title offers a shrewd and insightful portrait of Charles Evans Hughes. But the liberalism whose death Henretta reports did not die. And the “statist,” “centralization,” “economic planning,” and broad “social insurance” minded liberalism he reports as prevailing did not prevail. From a certain lofty altitude (and rueful attitude), all “big,” “modern” “welfare states” look the same. That is Henretta's viewpoint. His wonderfully suggestive comparative framework has as one of its premises that America and England proceeded along the administrative-and-welfare-state-building path at different paces but arrived at the same destination. For me, a comparison of the law and politics, processes and outcomes of twentieth-century state-building in the U.S. and England prompts different conclusions. There were conspicuous differences between the New Deal state that was fashioned in 1930s and '40s America and the welfare state England created in those decades. More interestingly, the ideology and institutional contours of this new American state were deeply influenced by that ambivalent (and lawyerly) brand of American liberalism Henretta rightly attributes to figures such as Hughes and Roscoe Pound—poised between “progressive” commitments to social reform, social provision, and administrative-state-building, on the one hand, and older, “classical” liberal commitments to limited (and decentralized, dual federalist) government and the primacy of courts and common law and traditional legal and constitutional niceties, on the other. My notion is that this “transitional” and “forgotten” liberalism and its champions won more important battles than they lost against their “statist” rivals. A “strange death,” indeed!
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Jones, Trevor, and Stuart Lister. "Localism and police governance in England & Wales: Exploring continuity and change." European Journal of Criminology 16, no. 5 (July 3, 2019): 552–72. http://dx.doi.org/10.1177/1477370819860689.
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This article develops further criminological understandings of ‘localism’ in police governance and contributes to broader theoretical discussions about ‘governance’ in contemporary policing, via a critical analysis of major recent law and policy reforms in England & Wales. Recent legislation has brought important changes to the balance of constitutional-legal powers and the institutional architecture of police governance. However, we argue that for several reasons it is problematic to interpret these developments in straightforward terms of greater ‘localization’. First, in so far as there has been a decentralization of control, this represents a growth of ‘regional’ rather than ‘local’ auspices of power. Second, there is widespread evidence of continuing interventionism by ‘the centre’, asserting strong influences on local policing via a range of national bodies. Third, important developments in the wider context of police policy-making – most importantly the conditions of austerity – have circumscribed the capacity of Commissioners to set their own policy agendas and resulted in a retrenchment of policing provision at the most ‘localized’ geographical units of neighbourhoods. Indeed, the combination of decentralizing formal responsibility for policing policy and restrictive central financial controls amounts in practice to a ‘devolution of blame’ by the centre for falling service standards. Finally, we argue that the growing complexity and fragmentation of police governance cannot be captured adequately by ‘vertical’ analysis of central–local relations. Although central influences remain predominant, policing policy networks have become more diverse, with important developments at ‘horizontal’ levels locally, regionally and nationally. Within this more fragmented governance framework, central influences continue to drive local policing, but primarily via a range of ‘arm’s length’ institutions and techniques.
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Buchan, Jamie, and Katrina Morrison. "Compromise, partnership, control: Community Justice Authorities in Scotland." Criminology & Criminal Justice 20, no. 2 (November 29, 2018): 226–43. http://dx.doi.org/10.1177/1748895818814903.
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Community Justice Authorities (CJAs) were heralded on their inception as modernizing Scotland’s community justice system and resolving longstanding tensions between central and local government over community justice control, by encouraging partnership working and providing oversight at a regional level. However, they were largely unsuccessful and were quietly abolished barely a decade later. Using data from two projects, we analyse the policy ‘narrative’ of CJAs in relation to features of a changing political context – particularly the (re-)establishment of Scotland’s national government, its shifting relationship with local government and policy convergence and divergence with England and Wales. CJAs’ origins in local/national compromise created constitutional flaws which constrained their operation and ultimately sealed their fate, but they nonetheless began to develop distinct identities and contributions which have been largely overlooked. The case of CJAs illustrates how evolving local and national political contexts shape the development of justice institutions.
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Taylor, Greg. "Jury Trial in Austria." New Criminal Law Review 14, no. 2 (2011): 281–325. http://dx.doi.org/10.1525/nclr.2011.14.2.281.
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Austria has had a system of jury trial, with some interruptions, since 1848. Although Austrian jury trial was derived from England via France, little is known about it in the common law world. This article commences with an overview of the history of jury trial in Austria and of the constitutional protection it currently enjoys. Then the major differences between Austrian jury trial and the common law's model of jury trial are analyzed, and the system of appeals is described. It will be seen that much of trial practice and the appeals system is either an attempt to adapt a transplanted institution to the inquisitorial system and/or a result of the “Austrofascist” dictatorship's so-called reforms of 1933–1934. Austrian jury trial has not fared well in the inquisitorial environment, a state of affairs that does not result from any fundamental incompatibility between the inquisitorial system and jury trial but rather from a lack of enthusiasm for jury trial among the Austrian legal elite.