Academic literature on the topic 'English legal doctrines'
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Journal articles on the topic "English legal doctrines"
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TOUFAYAN, MARK. "When British Justice (in African Colonies) Points Two Ways: On Dualism, Hybridity, and the Genealogy of Juridical Negritude in Taslim Olawale Elias." Leiden Journal of International Law 21, no. 2 (June 2008): 377–410. http://dx.doi.org/10.1017/s0922156508004998.
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AbstractTaslim Elias's scholarship on the impact of English common law on the growth of African customary law illustrates the intersectionality negotiated between ‘centre’ and ‘periphery’, universal and subaltern laws. His intellectual portrait is also useful as a heuristic device to excise the doctrines, strategies, imageries, and narratives of progress elaborated about ‘Africa’ and ‘law’. Elias decried the contempt and ignorance exhibited by colonial masters towards native customs and laws; he also vilified judicially crafted ‘repugnancy’ and ‘public policy’ doctrines as instruments of colonial policy to prevent British justice from looking both ways, by ensuring that British standards were the ‘objective’ criteria of abrogation and change. Yet he nonetheless saw these doctrines and English law as a unifying force in the emergence of a unified Nigerian legal system. This article argues that this paradox in Elias's work and his struggle against the asserted dualism between English law and African customary law must be situated in the context of the rise of an African legal consciousness or juridical Negritude, home to various political projects of nation-building, African cultural liberation, and development which strategically intersected in their unstable relationship to law and Western culture. This signals a turn to ‘hybridity’ in legal discourse and Elias's professional trajectory seeking to develop a uniform common law for Nigeria as a way to explicate the workings of this relationship, and how African law is inscribed in the interplay of cultural forces constantly (re)negotiating the boundaries of their engagement with one another. This, in turn, reveals a complex picture of mediating between the simultaneous participation of Third World intellectuals in various struggles and personal or ideological projects within African humanism, which an analysis structured around the stability of centres/peripheries conventionally distorts.
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Halberda, Jan. "Mistake of law and mistake of fact in English law of restitution." Tijdschrift voor rechtsgeschiedenis 82, no. 3-4 (December 3, 2014): 261–83. http://dx.doi.org/10.1163/15718190-08234p03.
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The paper discusses the history of the English law doctrine according to which the mistake of law (error iuris) is a bar for restitution. The author seeks to analyze the premises of mistake that led to recovery of the payment. Since the adjudication of the leading case Bilbie v. Lumley (1802) it was settled by the courts that he who had paid while operating under mistake of fact could demand restitution. On the other hand the one who acted under mistake of law could not. Over the last two centuries, until the ground-breaking decision in Kleinwort Benson Ltd v. Lincoln City Council (1999), the distinction into mistake of law and mistake of fact was very important in cases of undue payment. The author ventures whether there are any foundations for the promotion of the thesis that the aforementioned distinction might be an example of the reception of continental doctrines by the English legal system.
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Mousourakis, George. "Defending Victims of Domestic Abuse who Kill : A Perspective from English Law." Les Cahiers de droit 48, no. 3 (April 12, 2005): 351–71. http://dx.doi.org/10.7202/043935ar.
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The term “cumulative provocation” is used to describe cases involving a prolonged period of maltreatment of a person at the hands of another, which culminates in the killing of the abuser by her victim. Since the early 1990s there has been a plethora of academic commentary on the criminal law’s response to such cases. More recently, the debate has been re-opened following the publication of the English Law Commission’s proposals on the partial defences to murder. This article examines doctrinal issues that arise in relation to claims of extenuation stemming from the circumstances of cumulative provocation. It is argued that, given the scope and limitations of the provocation defence, one should view the circumstances of cumulative provocation as likely to bring about the conditions of different legal excuses. Identifying the relevant legal defence would require one to reflect on the nature of the excusing condition or conditions stemming from the circumstances of each particular case. Although the paper draws largely upon the doctrines of provocation and diminished responsibility as they operate in English law, it is hoped that the analysis offered has relevance to all systems where similar defences are recognized (or proposed to be introduced), and can make a useful contribution to the continuing moral debate that the partial excuses to murder generate.
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Mikhailov, Anton Mikhailovich. "To the question on philosophical-methodological foundations of English legal positivism of the XIX century (legal teachings of J. Bentham and J. Austin)." Право и политика, no. 11 (November 2020): 57–73. http://dx.doi.org/10.7256/2454-0706.2020.11.34429.
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The subject of this research is the aggregate of philosophical ideas and methodological paradigms that underlie the concepts of the “first” legal (statist) positivism in England of the XIX century. The author traces the impact of certain philosophical trends and legal concepts of the XVIII – early XIX centuries upon the philosophical and methodological foundations of the positivist concepts of J. Bentham and J. Austin. The article describes the influence of social atomism, and exploratory rationality of Modern Age upon the “first” legal positivism of philosophical rationalism of the XVIII century. The impact of such philosophical and legal concepts as nominalism, the historical school of lawyers, and philosophical positivism of A. Comte upon the “first” legal positivism was reconstructed. The scientific novelty consists in reconstruction of the influence of an entire number of philosophical and legal ideas and concepts upon the development of “first” legal positivism. Correlation between the legal doctrine of J. Bentham, philosophical concepts of the XVIII century, and the legal teaching of T. Hobbes is underlined. The author draws the ideological parallels between the philosophical nominalism, logical paradox of D. Hume, and legal doctrines of J. Bentham and J. Austin. The author reveals the key “channels” of the impact of German Historical School upon legal positivism, describes the similarities and differences between the scientific positivism of A. Comte and the concepts of legal positivism of J. Bentham and J. Austin. The philosophical-methodological framework of the concepts of “first” legal positivism were subjected to a significant influence of the methodological paradigm of philosophical rationalism, social atomism, exploratory scientific rationality of Modern Age, and nominalism.
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Walpola, Sonali. "The Development of the High Court's Willingness to Overrule Common Law Precedent." Federal Law Review 45, no. 2 (June 2017): 291–314. http://dx.doi.org/10.1177/0067205x1704500206.
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In its first 60 years the High Court showed a complete deference to English precedent, and did not of itself initiate changes to common law doctrines. The High Court took its first steps towards autonomy in common law matters only in the 1960s when it abandoned its policy of following decisions of the House of Lords, thereby ending the practice of automatically incorporating English common law developments into Australian law. It is shown that the Court acquired a willingness to overturn ‘recent’ common law rules (those of 20th century origin) after the abolition of appeals from the High Court to the Privy Council in the 1970s. The elimination of appeals from State Supreme Courts to the Privy Council in the 1980s led to a further broadening of the range of doctrines the Court was prepared to reconsider. Notably, since the 1990s, the Court has shown its willingness, in compelling circumstances, to overrule ancient common law doctrines acquired before Federation. This paper gives a detailed account of the emergence and expansion of the High Court's willingness to overrule common law precedent. It reveals how the High Court's autonomy in common law matters was developed in distinct stages that are linked to Australia's changing legal, political and socio-economic ties with Britain, and its growing sense of an independent national identity.
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Letelier, Pablo. "ANOTHER CIVILIAN VIEW OF UNJUST ENRICHMENT'S STRUCTURAL DEBATE." Cambridge Law Journal 79, no. 3 (November 2020): 527–48. http://dx.doi.org/10.1017/s0008197320000550.
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AbstractThis article seeks to illustrate the kinds of difficulties that may follow from renouncing a unified approach to restitutionary claims for unjust enrichment. To do so, it draws on the experience of the French legal system, where the notion of unjustified enrichment describes a maxim inspiring various doctrines which have evolved in relative isolation from each other. Relying on this experience, the article argues that the objections recently raised by Nils Jansen against the German law of unjustified enrichment should not lead English lawyers to downplay the value of a unified approach to the subject.
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Fadel, Mohammad. "Marriage and Slavery in Early Islam." American Journal of Islam and Society 28, no. 4 (October 1, 2011): 142–45. http://dx.doi.org/10.35632/ajis.v28i4.1237.
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Kecia Ali has already acquired a reputation as one of the most important English-language scholars of Islam and gender of her generation. Her latest book will do nothing to detract from that reputation, and may well solidify her asthe leading scholar of her generation of Islam and gender in the United States.While the title suggests that its contents exhibit a parallel concernwith slavery and marriage, the work is really devoted to showing how theformally separate legal institutions of marriage and slave holding shapedand were shaped by each institution ‒ with their respective doctrines attimes converging, and while at other times, the doctrines diverged. Thebook consists of an introduction, five substantial chapters, and a conclusion.The chapters cover the formation of a marriage and its similarities toand distinctions from concubinage, the only other legal relationship thatmade sexual relations licit. The second chapter treats the interdependencyof claims within marriage, while pointing out the gendered nature of theclaims particular to the husband and the wife. The third chapter focuses onthe wife’s legal claims to her husband’s companionship, particularly in thecontext of a polygynous marriage. The fourth chapter deals with the variousmodes of dissolving a marriage in Islamic law and compares them witha master’s power to manumit his slave. The fifth chapter compares andcontrasts marriage and slavery as particular modes of ownership (milk) ...
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Albalawi, Khalaf M. "Critical evaluation of English and Saudi insurance law: A case for reform." RUDN Journal of Law 25, no. 2 (December 15, 2021): 582–600. http://dx.doi.org/10.22363/2313-2337-2021-25-2-582-600.
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The global significance of English law continues, particularly in Saudi as it is the most frequently chosen insurance policy law. Both jurisdictions provide consumer protections in insurance markets including the Consumer Insurance (Disclosure and) Act and the 2015 Insurance Act and the Insurance Consumer Protection Principles 2014 in Saudi Arabia. This study aims to analyse the current reform impact on the interpretation of these doctrines between the UK and Saudi jurisdictions. In the last few years British insurance law has been significantly reviewed and modified and the most recent amendments, as per the Insurance Act 2015, are of the greatest significance and will be given due consideration within this paper. However, both the rationale for the reforms and the reform process will be reviewed as well as the UK perspective of the increasing rivalries between countries on account of legal business.
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Campbell, Mat. "Subsidiarity in Private Law?" Edinburgh Law Review 24, no. 1 (January 2020): 1–25. http://dx.doi.org/10.3366/elr.2020.0597.
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This is the first English language paper seriously to examine the meaning of subsidiarity from the perspective of private law, in which it might be used to understand legal rules, or the interaction of different kinds of claim. Since there are so few relevant sources in English, this article casts a wide net for consensus. It offers six propositions about what it means to designate a rule or relationship (between legal regimes, say) as one of subsidiarity. These are formulated by reference, principally, to thinking about subsidiarity outwith private law; and, secondarily, to (i) miscellaneous literature about subsidiarity, (ii) the general French private law literature about subsidiarity, and (iii) what little can be gleaned from relevant unjust enrichment discourse in English. The state of play in that discourse is summarised, before the choice of Roman Catholic social teaching, European Union law, and European human rights law as settings to examine for their conceptions of subsidiarity is explained, and subsidiarity in each of these contexts is sketched out. Succeeding sections then outline each proposition, and clarify how it may be derived from the sources. The paper concludes by reflecting guardedly on the potential of subsidiarity in private law, as a way to model the interrelation of private law claims and doctrines.
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Allen, J. G. "Wrapped and Stacked: ‘Smart Contracts’ and the Interaction of Natural and Formal Language." European Review of Contract Law 14, no. 4 (November 29, 2018): 307–43. http://dx.doi.org/10.1515/ercl-2018-1023.
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Abstract This article explores ‘smart contracts’ from first principles: What they are, whether they are properly called ‘contracts’, and what issues they raise for national contract law. A ‘smart’ contract purports to record contractual promises in language which is both intelligible to human beings and (ultimately) executable by machines. The formalisation of contracting language that this entails is, I argue, the most important aspect for lawyers—just as important as the automation of contractual performance. Rather than taking a doctrinal approach focused on the presence of traditional indicia of contract formation, I examine the nature of contracts as legal entities created by words and documents. In most cases, smart contracts will be ‘wrapped in paper’ and nested in a national legal system. Borrowing from the idiom of computer science, I introduce the term ‘contract stack’ to highlight the complex nature of contracts as legal entities incorporating different ‘layers’, including speech acts by the parties in both natural and formal languages as well as mandatory legal rules. It is the interactions within this contract stack that will be most important to the development of contract law doctrines appropriate to smart contracts. To illustrate my points, I explore a few issues that smart contracts might raise for English contract law. I touch on the questions of illegality, jurisdiction, and evidence, but my focus in this paper is on exploring issues in contract law proper. This contribution should be helpful not only to lawyers attempting to understand smart contracts, but to those involved in coding smart contracts—and writing the languages used to code them.
Dissertations / Theses on the topic "English legal doctrines"
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Pagan, John R. "Law and society in restoration Virginia." Thesis, University of Oxford, 1997. http://ethos.bl.uk/OrderDetails.do?uin=uk.bl.ethos.320914.
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Schneider, Debra M. "Blending Doctrine, Practice, and Purpose in Legal Education: The Case for an Integrated Pedagogy." VCU Scholars Compass, 2008. http://scholarscompass.vcu.edu/etd/1106.
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Traditional legal education is sorely imbalanced. A law student receives rigorous training in legal doctrine and analytical skillshe learns to "think like a lawyer"but is left with little training in practical skills or his ethical role in society. Moreover, law schools rely almost exclusively on the ineffectual pedagogy of the case-dialogue, or "Socratic," method. Several factors explain this entrenched imbalance, most notably the academy's top-down power structure and its budget constraints. Increasingly, however, the marketplace is demanding practice-ready lawyers who have strong training not only in doctrine but in practical skills and ethics. Law schools, responding to this market pressure, are beginning to implement pedagogies that foster this balanced legal training. Toward this end, I advocate implementing into law school curricula three specific, workable pedagogies: using group learning models, using writing as a learning tool, and using assessment as a formative and ongoing component of the learning process.
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Ashfaq, Muhammad. "The crime of aggression : a critical historical inquiry of the just war tradition." Thesis, University of St Andrews, 2018. http://hdl.handle.net/10023/13671.
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Why has international society been unable to develop political and judicial collective-security arrangements to limit external aggression? The thesis argues that efforts to limit aggression in moral and legal theory have created an unjust order in which great powers have used these theoretical traditions to reinforce their power in the global order. The thesis argues that is not a new development but can be found in one of the oldest traditions of moral reflection on war, the just war tradition. To substantiate this point, the thesis critically surveys the philosophers of the ancient Greek, Roman, Medieval Christian Renaissance, and early modern theorists of just war and demonstrates that their just war ideas contain assumptions about exclusion, identity and power reflecting their cultural superiority which underlie the practices and theories of the leading states and justifications of their aggressive wars. The thesis connects these moral reflections to the emergence of modern international law and the European pluralist international society of states based on mutual respect for sovereignty and the norm of non-intervention, highlighting how justifications of its colonial aggression against non-Europeans established an unjust solidarist order against them which persists in the post-Cold War era. To conclude it presents suggestions for improvement in the current pluralist international arrangements to address the issue of aggression.
Books on the topic "English legal doctrines"
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Bischoff, A. G. From imported "doctrine" to municipal law: A sketch history of foreign influences on the growth of the English Law of Conflict : paper presented at the Eighth British Legal History Conference, Cardiff, July,1987. London: Law Notes Lending Library, 1987.
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Baker, John. Introduction to English Legal History. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780198812609.001.0001.
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This book provides a concise introduction to the history of the main institutions and doctrines of English law, from the earliest times to the present. It retains the structure of the fourth edition (2003) but has been heavily revised to take account of recent research and thinking on the topics addressed. Citations of the companion source-book, Baker and Milsom, have all been amended to refer to the enlarged second edition (2010). The concentration is on the common law rather than on the many statutory regimes and reforms of the last two centuries, but stories begun in earlier periods have been carried through in outline to the present.
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Wilson, Steve, Helen Rutherford, Tony Storey, and Natalie Wortley. English Legal System. Oxford University Press, 2018. http://dx.doi.org/10.1093/he/9780198808152.001.0001.
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English Legal System gives an understanding of the operation of the law and the legal system which is essential to the laying of a solid foundation upon which to build further legal studies. After offering practical advice on how to study the English Legal System, an overview is given of the nature of law, the sources of law, how the English legal system operates, the courts of England and Wales, and some of the important institutions and personnel of the law. How legislation is made and how it is interpreted is discussed. How judges make law and how this process is governed by the doctrine of judicial precedent are explored. The rule coming from a case, the ratio decidendi, and other statements of law, obiter dicta, are explained. The book considers the impact of membership of the European Union (EU) and being a signatory to the European Convention on Human Rights (ECHR). The institutions and personnel of the law, such as juries, judges, and lawyers are covered. The criminal process, from arrest to trial to sentencing, is explained and analysed. Resolution of disputes through the civil courts and tribunals is explained, as is the civil process. Alternative methods of dispute resolution, e.g. mediation and arbitration are also considered.
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Wilson, Steve, Helen Rutherford, Tony Storey, Natalie Wortley, and Birju Kotecha. English Legal System. Oxford University Press, 2020. http://dx.doi.org/10.1093/he/9780198853800.001.0001.
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English Legal System gives an understanding of the operation of the law and the legal system which is essential to the laying of a solid foundation upon which to build further legal studies. After offering practical advice on how to study the English legal system, an overview is given of the nature of law, the sources of law, how the English legal system operates, the courts of England and Wales, and some of the important institutions and personnel of the law. How legislation is made and how it is interpreted are discussed. How judges make law and how this process is governed by the doctrine of judicial precedent are explored. The rule coming from a case, the ratio decidendi, and other statements of law, obiter dicta, are explained. The book considers the impact of membership of the European Union (EU) and being a signatory to the European Convention on Human Rights (ECHR). The institutions and personnel of the law, such as juries, judges, and lawyers are covered. The criminal process, from arrest to trial to sentencing, is explained and analysed. Resolution of disputes through the civil courts and tribunals is explained, as is the civil process. Alternative methods of dispute resolution, e.g. mediation and arbitration, are also considered.
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Stavros, Brekoulakis. Part XI Public Policy and Abuse of Process, 32 Public Policy Rules in English Arbitration Law. Oxford University Press, 2016. http://dx.doi.org/10.1093/law/9780198783206.003.0033.
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This chapter argues that the doctrine of public policy currently adopted by legal discourse in arbitration is conceptually and methodologically confusing, and outdated. It is conceptually confusing because there is usually no explanation about how the content of public policy is ascertained or whether the doctrine functions as a legal principle or a set of legal rules. The doctrine of public policy, as a structured set of legal rules, can be better conceived of as a doctrine of national law. The rules of public policy can also be ascertained from a careful analysis of the historical context and jurisprudential development of the doctrine. The chapter first looks into the concept and function of public policy in English law and jurisprudence. It then focuses on the role of public policy in English private international law, before finally ascertaining the rules of public policy in English arbitration law.
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San, Tay Pek. The Legal Landscape of Contract Formation: Towards a Distinct Malaysian Jurisprudence? Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198808114.003.0006.
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This chapter examines the formation of contract under Malaysian law. The Malaysian Contracts Act 1950 (‘MCA 1950’) is modelled on the Indian Contract Act 1872 (‘ICA 1872’). In common with the ICA 1872, the analytical structure for the formation of contract is strikingly similar to that of English law, with unique definitions introduced by the ICA 1872. A proposal, upon acceptance by the person to whom the proposal is directed, becomes a promise; reciprocal promises which constitute consideration for each other result in an agreement; upon the satisfaction of the other conditions for the formation of contract, a contract is constituted. The continuing influence of English common law on Malaysian law is expressly provided by sections 3 and 5 of the Civil Law Act 1956; these form the basis for the reception of the doctrine of promissory estoppel which is absent in the text of the MCA 1950. Where the MCA 1950 does not preclude the adoption of English legal developments, the Malaysian courts have been ready to adopt such developments.
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Televantos, Andreas. Capitalism Before Corporations. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198870340.001.0001.
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This book considers to what extent English law was able to facilitate trade before the advent of general incorporation and modern securities law. It concentrates on the period from 1790 to 1827 — the period after Lord Mansfield's well-known contributions to commercial law, and examines the extent to which legal institutions of that time were sympathetic to the needs of merchants and willing to accommodate their changing practices and demands within established legal doctrinal frameworks and contemporary political economic thought. It concentrates on cases of fraud and business failure, and the extent to which the English courts would shield society and third parties from the harmful effects of agreements reached by traders with one another. More technically, it deals with the organisational law of the period: the extent to which traders were able to create funds of assets for the purposes of trade and security, and to ‘ringfence’ those funds from their other dealings, and so to create ‘workable organisational law’ out of the ‘basic concepts of contract, property and debt priorities’. This book thereby seeks to show that a key economic function of law is to split property into different pools which can be bonded to different creditors, with a close textured legal historical understanding of how lawyers and judges understood the law which played this function at a particularly crucial time in English commercial law's development.
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Riordan, Jaani. The Liability of Internet Intermediaries. Oxford University Press, 2016. http://dx.doi.org/10.1093/oso/9780198719779.001.0001.
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Internet intermediaries play a central role in modern commerce and society. Although their economic and social importance is well-recognised, their legal liability remains poorly understood, and, until now, no work has specifically addressed their legal responsibility for wrongdoing carried out by third parties using their facilities or platforms. This work fills that gap by providing comprehensive coverage of the legal duties owed by intermediaries and the increasingly complex schemes that regulate their activities. The first part of the work introduces the concept of an internet intermediary, general doctrines of primary and secondary liability, and the European enforcement regime. The second part examines the liability of intermediaries in specific areas of law, with a detailed analysis of the applicable liability rules, and the major English case law, and decisions of the Court of Justice that interpret and apply them. The final part of the work provides guidance on remedies and limitations. Written by an expert author from the intellectual property chambers at 8 New Square, Lincoln's Inn, this is an essential guide for lawyers advising on liability, privacy, and online regulation.
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Kupelyants, Hayk. Sovereign Defaults Before Domestic Courts. Oxford University Press, 2018. http://dx.doi.org/10.1093/oso/9780198807230.001.0001.
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The monograph examines sovereign debt litigation before the English and New York courts. English and New York courts are the two main jurisdictions customarily chosen to resolve sovereign debt disputes. The book sets out parties’ litigation choices at various stages of proceedings and provides the legal background against which parties to a sovereign bond may wish to negotiate. The defining characteristic of the monograph is that it examines sovereign debt litigation through the prism of private law. The monograph clearly grounds its analysis in the law as it exists, rather than purely policy-oriented reasoning (albeit it keeps a critical eye on the reasoning of the courts). The monograph concentrates on diverse litigation tactics and arbitrage strategies available to bondholders and sovereign debtors that appear before the English courts. In most cases, private creditors may obtain summary judgments with relative ease. That said, often serious issues arise at the stages of assumption of jurisdiction, determination of the governing law of sovereign bonds or substantive resolution of the claims in English proceedings. Similarly, the enforcement of sovereign bonds against the assets of the sovereign often presents serious obstacles, most significantly the doctrine of State immunity. The book offers an exhaustive account of litigation tactics available to bondholders and sovereign debtors alike. The book is unique in the breadth of its coverage. It examines issues of jurisdiction and choice of law at the preliminary stages of litigation, substantive challenges of various sorts to sovereign debt restructurings and to the repayment of bonds on merits, and enforcement of final judgments against the State and its assets in the post-judgment phase.
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Hayk, Kupelyants. Sovereign Defaults Before Domestic Courts. Oxford University Press, 2018. http://dx.doi.org/10.1093/law/9780198807230.001.0001.
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The monograph examines sovereign debt litigation before the English and New York courts. English and New York courts are the two main jurisdictions customarily chosen to resolve sovereign debt disputes. The book sets out parties’ litigation choices at various stages of proceedings and provides the legal background against which parties to a sovereign bond may wish to negotiate. The defining characteristic of the monograph is that it examines sovereign debt litigation through the prism of private law. The monograph clearly grounds its analysis in the law as it exists, rather than purely policy-oriented reasoning (albeit it keeps a critical eye on the reasoning of the courts). The monograph concentrates on diverse litigation tactics and arbitrage strategies available to bondholders and sovereign debtors that appear before the English courts. In most cases, private creditors may obtain summary judgments with relative ease. That said, often serious issues arise at the stages of assumption of jurisdiction, determination of the governing law of sovereign bonds or substantive resolution of the claims in English proceedings. Similarly, the enforcement of sovereign bonds against the assets of the sovereign often presents serious obstacles, most significantly the doctrine of State immunity. The book offers an exhaustive account of litigation tactics available to bondholders and sovereign debtors alike. The book is unique in the breadth of its coverage. It examines issues of jurisdiction and choice of law at the preliminary stages of litigation, substantive challenges of various sorts to sovereign debt restructurings and to the repayment of bonds on merits, and enforcement of final judgments against the State and its assets in the post-judgment phase.
Book chapters on the topic "English legal doctrines"
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Huxley-Binns, Rebecca, Jacqueline Martin, and Tom Frost. "The doctrine of judicial precedent." In Unlocking the English legal system, 35–66. Fifth edition. | New York, NY: Routledge, 2017.: Routledge, 2017. http://dx.doi.org/10.4324/9781315392660-2.
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Baker, John. "Real Property." In Introduction to English Legal History, 299–316. Oxford University Press, 2019. http://dx.doi.org/10.1093/oso/9780198812609.003.0016.
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This chapter is concerned with the history of settlements of land, the means whereby landowners could control the devolution of their real property in the future. The fee tail seemed at first to allow land to be tied to a family so long as it lasted, but means were found of ‘barring the entail’ by common recovery or final concord. Much confusion was caused by the operation of the Statutes of Uses and Wills on future interests, but the principal outcomes were the ‘executory interest’ and the legal power. Equitable interests also resurfaced in the form of trusts. Conveyancers sought to use the new statutory magic to create perpetuities, but eventually the courts struck down perpetuity clauses as contrary to public policy. The resulting doctrines were utilized to fashion the strict settlement, employed in most landed families for three centuries; its workings are here described.
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Chen-Wishart, Mindy. "15. Good faith." In Contract Law. Oxford University Press, 2018. http://dx.doi.org/10.1093/he/9780198806356.003.0015.
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English law does not currently recognise a general duty of good faith, but this position is increasingly being challenged. In addition, good faith informs a diverse range of legal doctrines and principles. This chapter addresses the following: the meaning of good faith; good faith in current contract law; and the nature of good faith. It further considers whether English law should recognise a general good faith doctrine and the difference this might make to various aspects of the law.
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Priest, Claire. "English Property Law, the Claims of Creditors, and the Colonial Legal Transformation." In Credit Nation, 59–73. Princeton University Press, 2021. http://dx.doi.org/10.23943/princeton/9780691158761.003.0004.
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This chapter examines the legal doctrines relating to credit markets and commodification, looking at the issue of assets the legal system protected from the claims of creditors. It describes how colonial legislatures reformed English law to expand the scope of creditors' remedies against land and slaves. The chapter then considers the way that, prior to 1732, colonial legislatures used debtor–creditor law strategically to advance local interests vis-à-vis English creditors. Colonial legislatures were also responsible for creating the law of slavery, a foreign concept to English law. Laws were enacted throughout the colonial era defining slaves variously as “real estate” or “chattel” to achieve alternate ends.
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Cranston, Ross, Emilios Avgouleas, Kristin van Zweiten, Theodor van Sante, and Christoper Hare. "10. Advisory and Transactional Liability." In Principles of Banking Law. Oxford University Press, 2018. http://dx.doi.org/10.1093/he/9780199276080.003.0010.
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The chapter first discusses the general principles governing a bank's liability. One way to approach the topic involves a consideration of the relevant doctrines whereby banks can incur liability. Section I selects just a few such doctrines. Another approach considers the various factual matters which feed into legal decisions about bank liability. The same factors recur across different legal doctrines: indeed, they arise for consideration in other systems of law. This is the focus of Section II. Section III considers advisory liability, which can arise in two ways: a failure to advise where the law imposes a duty to do so, and a failure to advise adequately when a bank assumes the task of advising a customer or third party. Section IV turns to the English law doctrines which have a particular application to transactions involving those the law regards as vulnerable. The final section deals with ‘lender liability’.
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Penner, JE. "Equity, Justice, and Conscience." In Philosophical Foundations of the Law of Equity, 52–71. Oxford University Press, 2020. http://dx.doi.org/10.1093/oso/9780198817659.003.0004.
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This chapter assesses whether equity employs a distinctive moral criterion when it intervenes in people’s legal rights. It offers a different account about the extent and justification for the way in which English equity maps onto Aristotle’s second sense of equity. Combating the stickler for justice is a legitimate reason for state coercion, but it explains only a small number of equitable doctrines, for example estoppel and mistaken payment. Working within a Kantian framework, the chapter argues that the state is justified in forcing on some claimants an ethical duty to refrain from sticking to their rights in a bad way in order to protect the legal system from the damage this practice may cause. But while equity’s interventions in the parties’ rights in Aristotle’s second sense are legitimate, they are too few and far between to be counted as the intellectual foundation that sets equity apart from the common law.
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Wilson, Steve, Helen Rutherford, Tony Storey, and Natalie Wortley. "5. The doctrine of judicial precedent." In English Legal System. Oxford University Press, 2018. http://dx.doi.org/10.1093/he/9780198808152.003.0005.
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Judge-made law to be found in the case law is governed by the doctrine of judicial precedent. The rule on which a case is decided is called the ratio decidendi and other statements of law not affecting the outcome of a case are termed obiter dicta. Whether one court is bound by the ratio decidendi of another court depends upon the position of the court in the hierarchy of the hierarchy of the courts. The doctrine of binding precedent is alternatively known as the doctrine of stare decisis. A precedent may be avoided by the processes of overruling, distinguishing and reversing. The relationship between the English courts and the Court of Justice of the European Union (EU) and the European Court of Human Rights is considered.
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Wilson, Steve, Helen Rutherford, Tony Storey, and Natalie Wortley. "5. The doctrine of judicial precedent." In English Legal System, 147–90. Oxford University Press, 2016. http://dx.doi.org/10.1093/he/9780198747949.003.0005.
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Wilson, Steve, Helen Rutherford, Tony Storey, Natalie Wortley, and Birju Kotecha. "5. The doctrine of judicial precedent." In English Legal System, 163–208. Oxford University Press, 2020. http://dx.doi.org/10.1093/he/9780198853800.003.0005.
Full textAbstract:
This chapter considers an essential source of law in the English legal system: judicial precedent (or ‘case law’). This chapter discusses the rules and principles of the doctrine of judicial precedent, including how precedents are created, developed, and followed. The chapter considers the rule that forms the precedent—the ratio decidendi, or the reason for the decision—as well as the importance of other judicial statements that do not form part of those reasons—the obiter dicta. The principle of binding precedent is captured by the expression ‘stare decisis’ (stand by what is decided) and binding precedent relies on a hierarchy of courts. The hierarchy can help to establish whether a particular ratio decidendi binds a particular court and whether an appellate court is bound by its own previous precedents. The chapter is packed with case law examples and it also highlights the role of non-binding precedent which may still be deemed persuasive for a particular court. Again, the relationship between the English courts and the Court of Justice of the European Union (EU) and the European Court of Human Rights (ECtHR) is considered. Finally, the chapter considers how a court may avoid following a particular precedent by the process of overruling, distinguishing, or reversing.
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Wilson, Steve, Helen Rutherford, Tony Storey, and Natalie Wortley. "5. The doctrine of judicial precedent." In English Legal System, 135–76. Oxford University Press, 2014. http://dx.doi.org/10.1093/he/9780199669929.003.0005.
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