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1
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.
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Allan, James. "Positively Fabulous: Why It Is Good To Be a Legal Positivist." Canadian Journal of Law & Jurisprudence 10, no. 2 (July 1997): 231–48. http://dx.doi.org/10.1017/s0841820900001521.
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‘Legal Positivism’ is a much abused term. It is often pejoratively invoked by those occupying both the natural law and critical legal studies ramparts. The former see it as a school of thought which ignores the role in law of those standards and values which have not been deliberately laid down or unintentionally evolved. Positivism, for them, fails because it is prepared to describe a legal world where moral values play no necessary part and where transcendent values may not exist at all. The latter group of critics, not too dissimilarly, see legal positivism’s doctrines as over-reliant on rules and too inclined to accept that a legal system somehow can generate a logically mandated code of answers.In order to defend positivism it is advisable to start with an enunciation of its core precepts. With all that has been written attacking and supporting positivism though, this can be a contentious matter. So instead I shall defend one particular version of positivism, that of H.L.A. Hart. As Hart’s The Concept of Law, first published in 1961, is at worst one of the handful of great legal philosophy texts written in English this century and at best “the classic work of philosophical jurisprudence”, this preference for concentrating on the tangible and identifiable precepts of Hart over the woolly, elusive and frequently caricatured precepts of something disparagingly termed positivism has much to recommend it.
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Muchlinski, Peter. "Corporations In International Litigation: Problems of Jurisdiction and the United Kingdom Asbestos Cases." International and Comparative Law Quarterly 50, no. 1 (January 2001): 1–25. http://dx.doi.org/10.1093/iclq/50.1.1.
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In his seminal work The Multinational Challenge to Corporation Law Professor Phillip Blumberg assets that, “jurisdiction continues to be one of the most litigated areas involving the clash of enterprise and entity.”1 Indeed, in a world where business is increasingly conducted through the medium of economically integrated multinational enterprises (MNEs), the question of whether a forum has jurisdiction over disputes arising out of the operations of non-resident entities of the MNE brings into contrast the mismatch between the territorial reach of the legal system and the transnational reach of the enterprise. In terms of corporation law this raises the further matter of whether, and how far, the legal organisation of the MNE into distinct legal entities, in distinct legal jurisdictions, should affect the applicable rules of private international law as to the reach and scope of forum jurisdiction. Such issues have recently been aired before the English courts in a series of cases, arising out of the asbestos mining and milling operations of the British based MNE Cape plc in South Africa, which culminated in a judgment given by the House of Lords on 20 July 2000. It is the purpose of this paper to explore the issues of jurisdiction over non-resident entities of MNEs, first, through an examination of these cases in the light of Cape's industrial and management structure. It is striking how little such matters are addressed in the Anglo-American legal literature pertaining to private international law. Rather than considering the economic realities of the cases in issue, and developing new doctrines to deal with them, lawyers have tended to rely on legal concepts—in particular, the territorial nature of legal jurisdiction and the single unit corporate form—to lead them to often unsatisfactory results that would appear to a lay person not to accord with justice. A clearer understanding of the economic realities of group operations thus seems essential for the development of law in this area.
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Borrows, Lindsay. "DABAADENDIZIWIN: PRACTICES OF HUMILITY IN A MULTI-JURIDICAL LEGAL LANDSCAPE." Windsor Yearbook of Access to Justice 33, no. 1 (January 29, 2017): 149. http://dx.doi.org/10.22329/wyaj.v33i1.4815.
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Dabaadendiziwin is the Anishinaabe word which roughly translates to ‘humility’ in English. The late elder Basil Johnston said that we can talk of dabaadendiziwin/humility, but until we can look at the squirrel sitting on the branch and know we are no greater and no less than her, it is only then that we have walked with dabaadendiziwin/humility. Law places diverse peoples together in complicated situations. It challenges people to step outside of themselves and consider new ways of being. This paper advocates that humility is an important legal principle to bring people together in a good way. It considers first, what is humility and why is it an important legal principle? Second, what processes are in place in both Canadian and Anishinaabe law to actively cultivate humility? And third, how can diverse peoples use these processes when interacting with one another in ways that foster greater harmony in this multi-juridical country? The examples show that Canadian colonial law has tried to account for the need to humble oneself to a position of being teachable through Charter analyses, diversifying the bench, and through Aboriginal rights doctrines of taking into account the “aboriginal perspective”, and reconciliation. The paper also considers how Anishinaabe law fosters humility through linguistic structure, leadership structure, ceremonial practices and akinoomaage (learning from the earth). This paper is a call for people to confront the challenge of working across legal orders, and replace timidity, fear and pride with courage, gratitude and humility. Le mot dabaadendiziwin est un mot anishinaabe qui signifie ni plus ni moins « humilité » en français. Selon feu l’aîné Basil Johnston, nous pouvons bien parler de « dabaadendiziwin » ou d’humilité, mais ce n’est que lorsque nous regardons l’écureuil sur la branche et que nous savons que nous ne sommes ni plus grands ni plus petits que lui que nous comprenons parfaitement le sens de ce mot. La loi contraint des peuples diversifiés à vivre ensemble des situations complexes. Elle oblige les personnes à élargir leurs horizons et à envisager de nouvelles façons d’être. Dans ce texte, l’auteur affirme que l’humilité est un principe de droit important qui permet de rassembler des personnes d’une bonne façon. Dans ce contexte, il se demande d’abord en quoi consiste l’humilité et pourquoi elle constitue un principe de droit important. En deuxième lieu, il examine les processus qui sont en place tant dans le droit canadien que dans la loi anishinaabe afin de promouvoir activement l’humilité. En troisième lieu, l’auteur se demande comment des peuples diversifiés peuvent utiliser ces processus dans le cadre de leurs interactions de façon à promouvoir une plus grande harmonie dans le pays multijuridique qu’est le nôtre. Les exemples qu’il donne illustrent comment les acteurs du droit colonial canadien ont tenté de reconnaître l’importance de l’humilité en veillant à ce que la loi puisse être enseignée au moyen d’analyses fondées sur la Charte et en adoptant des mesures visant à diversifier la composition de la magistrature ainsi que des doctrines davantage axées sur le point de vue autochtone et sur la réconciliation aux fins de l’analyse des droits autochtones. L’auteur se penche également sur la façon dont la loi anishinaabe cherche à promouvoir l’humilité au moyen de la structure linguistique, de la structure hiérarchique, des pratiques cérémoniales et de la méthode appelée « akinoomaage » (enseignements de la terre). Enfin, l’auteur demande aux peuples de faire preuve d’audace afin de composer avec divers ordres juridiques et de remplacer la timidité, la crainte et l’orgueil par le courage, la gratitude et l’humilité.
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Nesterova, Olga. "Review of Vasil’eva S. A. monograph ““I was In prison, and you came to Me...”: the history of the origin of prison service practice in the Protestant tradition and its influence on the course of prison reform in America, Europe and Russia”." International penitentiary journal 1, no. 2 (August 29, 2019): 145–53. http://dx.doi.org/10.33463/2712-7737.2019.01(1-3).2.145-153.
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The article presents a review on Vasil’eva S.A. monograph ““I was in prison and you came to visit me...”: the history of the origin of prison service practice in the Protestant tradition and its influence on the course of prison reform in America, Europe and Russia» given by Nesterova Olga Ivanovna, DSc (History), senior inspector on special assignments of the division of penal legislation, planning and conducting of official inspections of the Legal Department in the Federal Penitentiary Service of Russia. The monograph is devoted to the origin and development of prison service practice in the Protestant tradition and its impact on prison reforms in Europe and America in the XIX century. Through the prism of prison philanthropy societies formation and the Institute of prison chaplains formation in the United Kingdom and the United States, the author explored theological, legal and practical aspects of prison service in the Protestant tradition. Turning to the history of Christian missionaries, who acted long before the penal reforms of the XIX century, the author rethinks the theoretical and methodological content of English penological doctrines. British penitentiary ideology and American practice were extrapolated in the XIX century to all European countries, marking the beginning of the creation of national penitentiary systems in Europe and the Russian Empire. The work analyzes the materials that have not previously been introduced into scientific circulation and not translated into Russian. The monographic study is recommended to historians, theologians, lawyers, specialists in the field of penology, students and graduate students of the Humanities, as well as anyone interested in the history of penitentiary reforms and problems of social history in general.
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Nederman, Cary J. "The Liberty of the Church and the Road to Runnymede: John of Salisbury and the Intellectual Foundations of the Magna Carta." PS: Political Science & Politics 43, no. 03 (June 30, 2010): 457–61. http://dx.doi.org/10.1017/s1049096510000570.
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Scholars generally agree that the Magna Carta of 1215 was a watershed in Western (and, more specifically, English) legal and political history and thought. Beyond this simple statement, however, there is little consensus concerning the nature and significance of the Magna Carta's achievement. One central unresolved issue centers on whether the charter represents a principled defense of human liberty or instead reflects a pragmatic statement of baronial liberties. The dispute over this question is nontrivial and reflects much more than a matter of language. If one subscribes to the former belief, which received its classic articulation in the seventeenth century (Turner 2003, 145–82) and retains powerful resonance today (Linebaugh 2008), then the Magna Carta deserves to be accorded a foundational role in the intellectual and political history of the liberal-democratic constitutional tradition, in which the rule of law is deemed the basis for the protection of individual freedom. If, however, one adopts the viewpoint of “the modern historian” that the charter “is a statement of [specific] liberties rather than an assertion of [general] liberty,” then the document should be read narrowly as an interesting artifact stipulating elite “privileges” that were “devised mainly in the interests of the aristocracy” (Holt 1965, 4). In other words, either the Magna Carta reflects deeper philosophical doctrines and commitments that enjoy purchase beyond their specific time and place, or it represents an expression of the immediate demands and grievances of a specific class displeased with the conduct of King John's government.
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McDonald, Peter. "Bishop Bateman and Bury St Edmunds: The Two Laws Clash*." English Historical Review 135, no. 572 (February 2020): 1–28. http://dx.doi.org/10.1093/ehr/ceaa007.
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Abstract Bishop Bateman’s assertion of his authority over the exempt abbey of Bury St Edmunds in 1345 brought him into conflict with a house closely linked to both papacy and Crown, and came at a time of Anglo-papal tensions. Bateman was no anti-papalist but, as a legal rigorist, wanted to satisfy himself about Bury’s claims to exemption and restrain its monks’ extra-mural misbehaviour. He had some basis for this in canon law, but the ensuing lawsuit at the papal curia seemed to be going against him until swept aside by a writ of prohibition. The monastery looked to the Crown as its chief protector, and the English courts asserted royal rights aggressively. They found Bateman and his commissaries in contempt for breaching the prohibition and for asserting that only the pope could confer exemption; the abbey’s papal privileges were only confirmations of royal charters. They confiscated Bateman’s temporalities and imposed massive fines, and the pope was powerless to intervene. This amounted to a repudiation of 250 years of canon law, harking back to the eleventh-century Eigenkirche. But Edward III needed Bateman as a diplomat, and imposed a compromise under which both sides withdrew their suits and he pardoned the bishop. As Anglo-papal relations settled after 1350, the Crown let canon law stand and did not enforce the doctrines developed in this case. Edward was content with bringing his bishops to heel, and the two systems resumed their normal co-operation. Still, the courts had set a new precedent for royal control.
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Varuhas, Jason N. E. "THE REFORMATION OF ENGLISH ADMINISTRATIVE LAW? “RIGHTS”, RHETORIC AND REALITY." Cambridge Law Journal 72, no. 2 (July 2013): 369–413. http://dx.doi.org/10.1017/s0008197313000500.
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AbstractThis article examines and responds to a doctrinal claim, made by an increasing number of commentators, that English administrative law is in the midst of a “reformation” or “reinvention”, with the notion of “rights” at the heart of this radical recalibration. The article is critical of such claims on several grounds. First, these claims are steeped in ambiguity, such that the nature and doctrinal scope of the claimed metamorphosis are not clear. Second, these commentators have not undertaken the sort of detailed doctrinal analysis which is required to make credible claims about the development of the law, meaning their broad claims have a strong propensity to mislead, and pass over the nuances and complexities of doctrine. An analysis of significant features of doctrine tends to tell against a wholesale recalibration of administrative law around rights, and indicates an increasingly pluralistic rather than unitary legal order. Third, despite the centrality of the idea of “rights” to their claims, these commentators do not squarely address what they mean by “rights”, in general using the term indiscriminately, and thereby plunging their claims into uncertainty. The article demonstrates the importance of conceptual clarity in analysing “rights”-based developments through a doctrinal analysis of “rights” in administrative law, conducted through the prism of W.N. Hohfeld's analytical scheme.
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Vinokurov, Sergei Nikolaevich. "The effect of the principle of good faith in the EU law upon English contract law during Britain’s membership of the European Union." Международное право, no. 1 (January 2021): 22–38. http://dx.doi.org/10.25136/2644-5514.2021.1.35273.
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The subject of this research is the effect of international legal representations of good faith reflected in the EU law upon English contract law pertaining to apparent borrowing and interpretation of this doctrine during Britain’s membership of the European Union. The author reviews the content of representations of good faith in English contract law, as well as probable changes of these views under the influence of EU law. The author determines the similarities and differences in interpretation of this concept in English common law during Britain’s membership of the European Union. A number of European directives that regulate international public relations and international private relations in the European Union contain the requirement of fair business practice and compliance with the requirements of good faith. Although, these acts had supremacy over British national legislation, which left a mark on English legal doctrine. The main conclusions consist in the establishment of versatile nature of the international legal concept of good faith of the EU law and the effect of representations of this concept upon the views of British legal experts in the field of English contract law. The article presents the contrary viewpoints on the content of requirements of good faith in the EU law and their perception by English contract law on the practical and doctrinal levels. The author also reveals certain common features and fundamental differences in interpretation of good faith in the EU law based on the EU normative acts and decisions of the European Court of Justice, as well as in the British landmark decisions and normative acts that regulate contractual relations in England and Wales.
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Sanger, Andrew. "REVIEW OF EXECUTIVE ACTION ABROAD: THE UK SUPREME COURT IN THE INTERNATIONAL LEGAL ORDER." International and Comparative Law Quarterly 68, no. 1 (January 2019): 35–66. http://dx.doi.org/10.1017/s0020589318000374.
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AbstractIn January 2017, the UK Supreme Court handed down landmark judgments in three cases arising out of the UK government's conduct abroad. In Serdar Mohammed v Ministry of Defence, the Court considered whether detention in non-international armed conflicts was compatible with the right of liberty in Article 5 of the European Convention on Human Rights. The second case, Belhaj v Straw, involved an examination of the nature and scope of the foreign act of State doctrine, and its applicability as a defence to tort claims arising out of the alleged complicity of the UK Government in human rights abuses abroad. Finally, Rahmatullah v Ministry of Defence saw the Court examining the nature and scope of the Crown act of State doctrine, and its use as a defence to tort claims alleging unlawful detention and maltreatment. All three cases raise important doctrinal issues and have significant consequences for government accountability and access to a judicial remedy. At the heart of each decision is the relationship between international law and English law, including the ways in which international norms influence the development of English law and public policy, and how different interpretations of domestic law affect how judges resolve questions of international law. These cases also see the judges grapple with the role of the English court in the UK constitutional and international legal orders.
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Zarzalejos Herrero, Jaime. "Análisis comparado de la cosa juzgada en Derecho inglés = Comparative analysis of the res judicata doctrine under English Law." CUADERNOS DE DERECHO TRANSNACIONAL 10, no. 1 (March 8, 2018): 489. http://dx.doi.org/10.20318/cdt.2018.4131.
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Resumen: El estudio tiene por objeto el análisis comparado entre la regulación de la doctrina de la res judicata o cosa juzgada en Derecho inglés y en el ordenamiento jurídico español. En primer lugar, el artículo analiza la cosa juzgada –y otras figuras preclusivas que producen efectos similares– desde la perspectiva Derecho inglés. En segundo lugar, se abordará su regulación en Derecho español. Finalmente, el trabajo expone una serie de conclusiones en donde se pone de manifiesto las diferencias y similitudes sobre su regulación en ambos ordenamientos.Palabras clave: res judicata, estoppel, Henderson rule.Abstract: The paper analyses the regulation of the res judicata doctrine under English and Spanish law from a comparative perspective. The paper first examines the regulation of the res judicata doctrine –and other pleas which have similar effects– under English law. Secondly, the paper reviews its regulation under Spanish law. The paper ends drawing some conclusions on the differences and similarities under both legal systems.Keywords: res judicata, estoppel, Henderson rule.
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Qtaishat, Ali Khaled. "The Doctrine of Ultra Vires: Commendable or Condemnable!" Asian Social Science 16, no. 5 (April 30, 2020): 148. http://dx.doi.org/10.5539/ass.v16n5p148.
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This study investigates principally the doctrine of Ultra Vires in the English law. It aims at crystalizing the ramifications of applying this act to the English Commercial Law throughout several eras, taking into account the impact of abiding by the Ultra Vires act on the parties involved in the concerned transactions; i.e. the concerned shareholders and creditors. Furthermore, the study attempts to decipher the puzzling matter which concludes whether the doctrine in question must be cherished or perished in the English legal system.
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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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Brekoulakis, Stavros. "The Evolution of Public Policy and Judicial Function in English Law." Journal of International Dispute Settlement 10, no. 3 (July 6, 2019): 472–95. http://dx.doi.org/10.1093/jnlids/idz012.
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Abstract This article is concerned with the function of English judges in employing the doctrine of public policy to decide cases under common law. For the first time, the article offers a critical appraisal of the recent evolution of public policy and decision making under English law from a structured doctrine of legal rules and limited judicial discretion to an open-ended principle of subjective evaluations. The main thesis of the article is that the latest judicial amendment of the nature of the public policy inquiry constitutes a radical and unnecessary departure from generally accepted propositions on the appropriate function of English judges in addressing issues of public policy.
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Gregor, Mary. "Leslie Mulholland on Kant's Rechtslehre." Dialogue 33, no. 4 (1994): 693–700. http://dx.doi.org/10.1017/s0012217300010775.
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Although legal positivism is still a position to be reckoned with, the fact that philosophers of law are again talking about “natural rights” indicates that positivism is no longer to be taken for granted. One result of this movement is an incipient interest, among English-speaking philosophers, in Kant's theory of rights as presented in The Doctrine of Right, Part I of The Metaphysics of Morals. For the past two decades German Kant scholars have been analyzing and commenting on The Doctrine of Right; but Mulholland's book is, to the best of my knowledge, the first systematic treatment of the theory in English. It is, on the whole, a helpful introduction to the subject, which should be of interest not only to Kant scholars but also to contemporary legal, political and social philosophers.
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Alcock, Alistair. "PIERCING THE VEIL – A DODO OF A DOCTRINE?" Denning Law Journal 25, no. 1 (October 11, 2013): 241–54. http://dx.doi.org/10.5750/dlj.v25i1.785.
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In the course of the 2012/13 legal year, the Supreme Court has had to consider the doctrine of piercing the corporate veil twice, in VTB Capital plc v Nutritek International Corpn (VTB), and more recently in Prest v Petrodel Resources Ltd (Prest). On both occasions, the Court was in effect asked to remove the whole doctrine from English Law, but narrowly failed to do so, begging the question, does the doctrine really serve any purpose now? Let me start with Prest.
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Meggitt, Gary. "Insurable interest – the doctrine that would not die." Legal Studies 35, no. 2 (June 2015): 280–301. http://dx.doi.org/10.1111/lest.12059.
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The doctrine of insurable interest grew out of eighteenth-century anxieties over fraudulent seafarers and habitual gamblers. It was created by the courts, entrenched by statute and remains in place to this day despite the fact that it serves no practical or legal purpose. It was hoped by many that, when the English Law Commission and Scottish Law Commission established their joint review of insurance contract law in 2006, the doctrine would be consigned to the proverbial dustbin of history. Eight years later, these hopes have been dashed. The doctrine is here to stay. This paper asks ‘Why’ and finds the answer to be elusive.
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Baker, Dennis J. "Should Unnecessary Harmful Nontherapeutic Cosmetic Surgery be Criminalized?" New Criminal Law Review 17, no. 4 (2014): 587–630. http://dx.doi.org/10.1525/nclr.2014.17.4.587.
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In this article, it is argued that an application of the harm principle to many forms of nontherapeutic cosmetic surgery shows that these procedures are a form of physical harm, not a form of medicine, and therefore ought to be criminalized. Not only does the harm principle support the case for criminalization, but so too do the relevant precedents. This article focuses on the general moral justifications (wrongful harm to others) for criminalizing unnecessary harmful cosmetic surgery, but legal doctrine is also invoked to demonstrate that there is a legal justification for criminalization. The famous English case of R. v. Brown will be discussed to outline the core legal case for criminalization. This article does not aim to provide a comparative study of the U.S. and English authorities, but rather aims to make theoretical arguments for criminalization, and thus, works from the legal premise that in most states the U.S. courts have taken a similar position to that taken in the seminal English House of Lords decision in R. v. Brown.
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Chen-Wishart, Mindy. "LEGAL TRANSPLANT AND UNDUE INFLUENCE: LOST IN TRANSLATION OR A WORKING MISUNDERSTANDING?" International and Comparative Law Quarterly 62, no. 1 (January 2013): 1–30. http://dx.doi.org/10.1017/s0020589312000541.
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AbstractIs legal transplant possible? The stark bipolarity of a ‘yes’ or ‘no’ answer attracted by such a question is much less interesting and revealing than the question: what shapes the life of legal transplants? The answer to the latter question is contingent on a wide range of variables triggered by the particular transplant; the result can occupy any point along the spectrum from faithful replication to outright rejection. This case study of the transplant of the English doctrine of undue influence into Singaporean law asks why the Singaporean courts have applied the doctrine in family guarantee cases to such divergent effect, when they profess to apply the same law. The answer owes less to grand theories than to a careful examination of the nature of the transplanted law and the relationship between the formal and informal legal orders of the originating and the recipient society raised by the particular transplant.
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Baker, J. H. "Famous English Canon Lawyers I." Ecclesiastical Law Journal 1, no. 3 (July 1988): 3–7. http://dx.doi.org/10.1017/s0956618x00007031.
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Given the prominence accorded to doctrinal authority in the earlier canon law, it is natural that most famous canonists achieved their fame through their writings. Although the leading writers were often also judges and men of affairs, it was possible to lead an active life in the practice of the canon law without leaving any identifiable mark on history. To this general principle Bishop Bateman constitutes a remarkable exception: distinguished judge, leading figure in the Curia at Avignon, and patron of legal studies in Cambridge, he left several marks on history which entitle him, though not known as a writer, to be classed with the greatest English canon lawyers.
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Zagirnyak, Mikhail Yu. "Sobornost and Totality in Georges Gurvitch's Social Law Doctrine." RUDN Journal of Philosophy 25, no. 1 (December 15, 2021): 130–38. http://dx.doi.org/10.22363/2313-2302-2021-25-1-130-138.
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Georges Gurvitch (1894-1965), from the 1920s to the end of his life, was solving the problem of combining unity and plurality in the justification of society. He believed that individualism and collectivism represented social processes in a limited way because they were based on the preconception that the binding power of law derives respectively from a private or corporate actor's will. Gurvitch contrasted individual law with the social one, which was intended to overcome the opposition between individualism and collectivism. Social law bases on legal sociology's assumption that social interactions as such are already legal relations. This conclusion allows Gurvitch to consider any social interaction as a source of law and to assert legal pluralism as a way of constructing society. The integrity of the latter is a condition for the mutual correlation of the multiplicity of legal regulations generated by internal social interactions into the unified structure of social law. In a holistic approach to comprehending social interactions, Gurvitch, in his Russian-language works in the migr period, uses the philosophical-legal interpretation of sobornost to describe society's integrity. In French- and English-language works from the 1930s, Gurvitch uses the term "totality," which he learned from Marcel Mauss, to describe social integrity. This article compares sobornost and totality as variants of denoting social integrity in Gurvitch's social law doctrine. The researcher determines that Gurvitch, using the concepts of sobornost and totality, interpreted society's development differently, 1) as anti-hierarchical sobornost equality, and 2) as a hierarchical inordination of totalities. Having analyzed the peculiarities of the interpretation of sobornost and totality in Gurvitch's works, the author concludes that these concepts should be considered multilingual equivalents in denoting communal unity as sources of law, which reflect changes in the interpretation of society in Gurvitch's social law doctrine.
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Muldoon, James. "Grotius and English Charters." Grotiana 37, no. 1 (December 19, 2016): 16–42. http://dx.doi.org/10.1163/18760759-03700001.
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When examined collectively the trade and colonization charters that Tudor and Stuart monarchs issued demonstrate a developing English conception of world order based on trade monopolies and not on ecclesiastical premises or on the Grotian notion of freedom of the seas. There were therefore three early modern conceptions of how an international order might be created, not one, all of which affected European trade with the Americas and Asia. They all began with the assumption that the discovery of the several new worlds required developing rules of engagement to reduce if not to eliminate conflict among the European nations engaged in overseas exploration, settlement, and trade. As Koen Stapelbroek has pointed out, understanding the role of legal notions in the actual historical creation and gradually evolving function of a new kind of commercial-political entity, requires a distinctly non-doctrinal focus.’
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Valcke, Catherine. "Comparative History and the Internal View of French, German, and English Private Law." Canadian Journal of Law & Jurisprudence 19, no. 1 (January 2006): 133–60. http://dx.doi.org/10.1017/s0841820900005622.
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This Article explores the different intellectual and socio-political contexts that attended the emergence of the French, German, and English legal systems with a view to understanding French, German, and English private law from the perspective of the participants in these systems. The French legal system is a child of the Cartesian dualism that marked the Age of Reason, according to which the material world can and ought to be fully dominated by the human intellect. This conception of the relation of facts to ideas arguably is reflected in the structure and design of the French civil code, in such institutional features as the French conception of the role of the judge, as well as in the tendency of French jurists to view contractual consent subjectively. In contrast, the German legal system congealed at a time when Cartesian dualism was losing ground to German idealism. The dialectic conception of facts and ideas favoured by the German idealists arguably made its way into several institutional features of the German legal system, including the content of the BGB, the codification process, the conception of the role of the judge, the style of judicial decisions, and the greater inter-penetration of public and private law. It may also partly explain why German jurists have tended to view contractual consent as simultaneously objective and subjective. Finally, whereas both the French and the German legal systems emerged from highly intellectual contexts, the English legal system grew from a maize of pragmatic political and administrative considerations that left little room for explicit ideas. The emphasis on hard facts still is palpable in many aspects of contemporary English law, in particular, the doctrine of stare decisis, the conception of the judicial function, and the mode of reasoning by analogy. It arguably also is reflected in the tendency of English judges to privilege the objective conception of contractual consent.
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Zhou, Qi. "An economic perspective on the doctrine of unilateral mistake in English contract law: a remedy-based approach." Northern Ireland Legal Quarterly 59, no. 3 (March 13, 2020): 327–38. http://dx.doi.org/10.53386/nilq.v59i3.518.
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The key economic issues in implementing the law of unilateral mistake are twofold. First, it should avoid misallocation of resources; second, it ought to create a sufficient incentive for acquisition of information. However, the rule of unilateral mistake in English contract law does not serve these economic goals satisfactorily. The existing law and economics literature deals extensively with how to achieve these ends by designing the legal standards for a unilateral mistake which can nullify the contract, with little discussion of the function of legal remedy. This paper offers a remedy-based approach and argues that it has economic advantages over the current law.
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Sanders, A. J. G. M. "Law Reporting in Swaziland." Journal of African Law 29, no. 1 (1985): 94–101. http://dx.doi.org/10.1017/s0021855300005659.
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The doctrine of judicial precedent forms an integral part of the general law of Swaziland. This doctrine would be unworkable without the publication of law reports. The following is an account of the Swaziland law-reporting process.The Kingdom of Swaziland, which regained its independence on 6 September, 1968, has retained the dual structure of laws and courts which it inherited from the British administration. In terms of this structure the traditional Swazi law and Swazi courts operate under the umbrella of the general law and the ultimate control of the general law courts.The country's general law is based on the Roman–Dutch law. When the British found that Civilian system of law to be well-established on their arrival in Southern Africa, they decided to respect it. However, many elements of English law were introduced. The doctrine of judicial precedent was one of them.Even though Swaziland shares with South Africa (including its “independent homelands”), Botswana, Lesotho, Namibia and Zimbabwe a mixed general legal system which resulted from the interaction between the Roman–Dutch Civilian law and the English Common law, its general law operates independently.
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Grafton, Courtney. "Foreign act of state and empire." Northern Ireland Legal Quarterly 71, no. 2 (August 14, 2020): 135–55. http://dx.doi.org/10.53386/nilq.v71i2.327.
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The judicial restraint limb of the foreign act of state doctrine is presented as a time-worn doctrine dating back to the seventeenth century. Its legitimacy is indelibly wedded to its historical roots. This article demonstrates that this view is misguided. It shows that the cases which are said to form the foundation of the judicial restraint limb primarily concern the Crown in the context of the British Empire and are of dubious legal reasoning, resulting in a concept trammelled by the irrelevant and the obfuscating. It has also unnecessarily complicated important questions relating to the relationship between English law and public international law. This article suggests that the judicial restraint limb of the foreign act of state doctrine ought to be understood on the basis of the principle of the sovereign equality of states and conceptualised accordingly.
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Barnes, Victoria, and Emily Whewell. "English Contract Law Moves East: Legal Transplants and the Doctrine of Misrepresentation in British Consular Courts." Chinese Journal of Comparative Law 7, no. 1 (June 1, 2019): 26–48. http://dx.doi.org/10.1093/cjcl/cxz005.
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MacMillan, Catharine. "ROGUES, SWINDLERS AND CHEATS: THE DEVELOPMENT OF MISTAKE OF IDENTITY IN ENGLISH CONTRACT LAW." Cambridge Law Journal 64, no. 3 (November 2005): 711–44. http://dx.doi.org/10.1017/s0008197305007014.
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THERE are few more vexed areas of contract law than that of a mistake as to the identity of a contracting party. The case law is difficult to reconcile. Judges and jurists disagree as to the effect of a mistake of identity upon the formation of a contract. This disagreement extends beyond discordance as to the operative principles to the very existence of the doctrine. That the issues are of current concern can be seen in the recent decision in Shogun Finance v. Hudson. This article examines how and why such a situation arose through an examination of the historical development of the doctrine. The thesis of this article is that the meaning of the early cases is obscured when they are viewed solely from a contractual perspective. The participants in these cases were also concerned with issues of criminal law and tort law. As these concerns disappeared from the law the meaning of the early cases was obscured and the cases have ceased to make sense. The article concludes with two sets of observations: first, what can be concluded, as a matter of legal history, from the development of this doctrine; secondly, how the modern law of mistake as to identity should regard these early cases.
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Allison, J. W. F. "VARIATION OF VIEW ON ENGLISH LEGAL DISTINCTIONS BETWEEN PUBLIC AND PRIVATE." Cambridge Law Journal 66, no. 3 (November 2007): 698–711. http://dx.doi.org/10.1017/s0008197307000682.
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The debate about distinguishing public law and private law has been wide-ranging and variously focused. It has contributed to a paradox (or contradiction) in legal thinking, described by Peter Cane in his contribution to Public Law in a Multi-Layered Constitution. On the one hand, Cane stresses that the distinction between public and private “seems alive and well”––manifest, inter alia, in judicial review procedure and the establishment of an Administrative Court in England, in EC law (demarcating the scope of directives with direct effect), in the provisions applicable to public authorities in the Human Rights Act 1998, in the “state action” doctrine of the US Supreme Court, and in the statutory demarcation of the Administrative Appeals Tribunal's jurisdiction in Australia. On the other hand, he stresses the extent of scholarly criticism of the distinction––that it is outmoded, descriptively inaccurate or normatively undesirable. In his view, the resolution of the paradox lies in recognition that “the supporters and the opponents of the public/private distinction are talking about different things”. He concludes that, for its opponents, as a result of institutional and functional hybridisation, “the distinction misrepresents the way power is distributed and exercised” but that, for its supporters, “it embodies an attractive normative theory of the way power ought to be distributed and its exercise controlled”. In his presentation of the paradox and its resolution, Cane thus brings together various views and distinctions––English, American and Australian––and suggests that a contrast between descriptive criticism and normative evaluation is crucial to understanding the public/private debate. By the breadth and inclusivity of his analysis, however, he also brings into question the desirability of unitary analytical treatment of various distinctions in various contexts, supported and opposed by people talking about “different things”.
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Miller, Frances H. "Denial of Health Care and Informed Consent in English and American Law." American Journal of Law & Medicine 18, no. 1-2 (1992): 37–71. http://dx.doi.org/10.1017/s0098858800011345.
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Health care rationing has gained greater visibility in the United States and the United Kingdom, for quite different reasons. As patients in both countries become more aware that potentially beneficial medical services can be denied them on economic — as opposed to purely medical — grounds, they are beginning to seek help from the judiciary. This Article contends that as rationing becomes more explicit, the doctrine of informed consent will come under increased pressure. The Article suggests that courts and legislatures consider imposing a legal obligation on physicians to inform their patients when potentially effective treatment is to be withheld for economic or other non-clinical reasons.
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Zwalve, W. J. "Sola scriptura, An essay in comparative legal history on 'obligacions' in thirteenth century France and England." Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review 80, no. 1-2 (2012): 95–128. http://dx.doi.org/10.1163/157181912x626939.
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AbstractIt is contended in this article that the doctrine of litterarum obligatio, as developed by Jacques de Révigny on the basis of Inst. 3,21, was not inspired by Roman law, but by the 'lettre scellée' of contemporary French customary law. It is also argued, that the English deed is the equivalent of the 'lettre scellée' of medieval French customary law, like the English recognizance is the equal of the publicum instrumentum, the 'lettre de baillie', of French customary law. They were primarily executory instruments, devised to prevent litigation by allowing for executory proceedings to be initiated after a summary hearing in court. They were the products of a legal culture that did not, as yet, recognize national boundaries. Nevertheless, English law was about to break away from its continental origins, by continuing to employ legal expedients, such as the deed, which, on the continent, were beginning to become obsolete, or completely changed in character, on account of the persistent pressure of canon law and Roman law. The demise of the deed on the continent was mainly, if not exclusively, due to the influence of Roman law and canon law, which allowed for parole evidence to defeat any instrument. The persistence of the deed in English law was guaranteed by the fact that it did not allow this to happen.
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Barnett, Peter. "The Prevention of Abusive Cross-Border Re-Litigation." International and Comparative Law Quarterly 51, no. 4 (October 2002): 943–57. http://dx.doi.org/10.1093/iclq/51.4.943.
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The title for this paper poses a deceptively simple question, and it is this: How do we utilise an earlier obtained judgment from country X to prevent abusive re-litigation in country Y? To this question the answer might appear obvious: one reaches for the doctrine of res judicata, that arcane yet fundamental body of law which provides that an earlier judgment is conclusive in a second suit involving the same subject-matter and same legal bases. However, while the doctrine of res judicata is well understood in the domestic setting, it is not entirely obvious how the doctrine applies to foreign judgments to prevent abusive re-litigation before the English courts. Nor is it obvious how the various judgment recognition regimes—in particular the regime established by the Brussels Regulation1—pre-ordain the preclusive effects to which a foreign judgment can give rise if relied upon to prevent abusive cross-border re-litigation.
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Brownsword, R. "The future of contract law: Three conversations at the Cape." Acta Juridica 2021 (2021): 3–36. http://dx.doi.org/10.47348/acta/2021/a1.
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This contribution considers the future of the English law of contract in the form of three conversations that are alert to the disruptive impact of technologies on both the content of legal rules and the way that lawyers think – and indeed on the kind of conversations that lawyers have with one another. The first conversation is concerned with ‘coherence’ in contract law, with the application of general principles to novel fact situations and to new phenomena, with the smoothing of tensions within the law, and with the internal integrity of legal doctrine. The second conversation focuses on a tension between, on the one hand, what may be called a traditional private law ‘coherentist’ concern for doctrinal integrity and the primacy of principle over policy and, on the other hand, a more ‘regulatory’ approach to contracts, especially to consumer contracts, in which policy and instrumental rationality prevail. The third conversation focuses on the use of emerging transactional technologies (such as blockchain-supported smart contracts and AI) that have the potential to displace the rules and principles of contract law. Instead of legal code governing transactions, might we find that technological coding does all the work, making, performing and enforcing ‘contracts’? Each conversation suggests a different future for contract law. The first conversation suggests that contract law will have difficulty in living up to the private law ideal of coherence; the second suggests that coherentism will struggle to survive as it is challenged by an increasingly regulatory approach to the governance of transactions; and the third suggests that, in a world of smart transactional technologies, there is a serious question mark about the relevance of contract law as a body of rules that governs transactions.
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Farooq, Salman, and Musab Yousufi. "The Application of Legal Maxim “King Can Do No Wrong” In the Constitutional Law of UK & USA: An Analytical Study." Global Legal Studies Review V, no. II (June 30, 2020): 1–10. http://dx.doi.org/10.31703/glsr.2020(v-ii).01.
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The legal maxim “King can do no wrong” was in full force in the English constitutional law ever since the emergence of British Empire. The doctrine provided absolute immunity to the Crown. The king started losing his absolute prerogatives, in centuries long battle for power among the Crown and lord businessmen, which eventually resulted in the concept of liable government in the UK in the shape of the crown proceedings act 1947. On the contrary the US constitutional law is silent about the presidential immunity, following the maxim “no one, even the government is above the law”. However, the US Supreme Court is expanding the application of this doctrine by granting the immunity to the president in cases where his act falls within the constitutionally assigned duties along with negating it in cases where the act of president falls outside the outer perimeters of his constitutionally assigned duties.
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Capern, Amanda L. "Maternity and Justice in the Early Modern English Court of Chancery." Journal of British Studies 58, no. 4 (October 2019): 701–16. http://dx.doi.org/10.1017/jbr.2019.91.
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AbstractThis article is a case study of female litigants acting in the capacity of mother in the English equity court of Chancery between 1550 and 1700. It starts by asking how prevalent mothers were as plaintiffs and defendants in Chancery, though the burden of the article is a qualitative analysis of maternal narratives in Chancery pleadings and the use of gendered tropes such as “poor mother.” Stepmothers and women acting in loco parentis—aunts, grandmothers, and godmothers—have been included to reflect the full range of women who acted in a maternal role in early modern society and explain how they were portrayed, sometimes through a querelle des femmes lens. The different legal strategies of mothers (and their lawyers) are examined in detail and the question of the “female voice” in the archives is addressed. The intention is to demonstrate how social and legal maternal identities were used to produce strategic storytelling by mothers and their lawyers in a rhetoric that they hoped would advantage their cases. More broadly, the article addresses questions about the structural connections between law and society, especially the construction of social identity and the habitus and doctrine of equity.
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Chereshneva, Irina. "Estoppel in Russia: to articulation of the problem." Право и политика, no. 9 (September 2020): 81–89. http://dx.doi.org/10.7256/2454-0706.2020.9.33913.
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Due to continuing interest of legal community to the problematic of preventing contradictory behavior or in the Anglo-American legal tradition – estoppel, the subject of this research is an attempt of determination of legal nature of the so-called norms of the Civil Code of the Russian Federation on estoppel. The selected topic is relevant due to the fact that there is no unanimity of opinions regarding the nature of estoppel; it is viewed as interdisciplinary principle, doctrine, institution of law, sanction for violation of the principle of good faith, one of the manifestations of the principle of good faith, legal mechanisms etc. An attempt is made to view estoppel from different perspectives: through the prism of the English promissory stopper, from the position of continental maxim “venire contra factum proprium", in relation with the principle of good faith. The conclusion is made that the so-called norms on estoppel in the Civil Code of the Russian Federation represent a special case of the doctrine of noncontradictory behavior, known to the continental legal order through the maxim “venire contra factum proprium", which is a manifestation of the principle of good faith. Based on this fact, it is inappropriate to designate the aforementioned norms as estoppel, since even in Anglo-American tradition, the variety of estoppels does not allow considering it a universal principle, and understanding of estoppel thereof does not correspond with its Russian interpretation. Moreover, being a part of Romano-Germanic legal family, there is no need for the Russian legal order to borrow foreign legal phenomena, especially when the evolution of similar legal constructs can be traced in the fold of continental system of law, which Russia belongs to.
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Izarova, Iryna, Bartosz Szolc-Nartowski, and Anastasiia Kovtun. "Amicus Curiae: Origin, Worldwide Experience and Suggestions for East European Countries." Hungarian Journal of Legal Studies 60, no. 1 (March 2019): 18–39. http://dx.doi.org/10.1556/2052.2019.60103.
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Abstract This article describes the meaning of amicus curiae according to modern legislation and doctrine, as well as its origin from Roman law and English law. One part of the article is devoted to the current legal position of international institutions regarding amicus curiae and its place in different legal systems worldwide. Furthermore, the last part of the article related to the analysis of the new amicus curiae concept in Ukraine legislation, combined with the new principles of judicial case management and cooperation of the judge and parties in civil procedure. The article concludes with some thoughts about the need and viability of its implementation in the civil law countries using examples of current reforms of Civil Procedure in Ukraine, and other states of Eastern Europe.
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Hutson, Lorna. "On the Knees of the Body Politic." Representations 152, no. 1 (2020): 25–54. http://dx.doi.org/10.1525/rep.2020.152.2.25.
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This paper analyzes the fullest theoretical elaboration of the doctrine of the King’s Two Bodies in the Elizabethan period, Edmund Plowden’s Treatise on the Succession (1567). It argues that Plowden here deploys the King’s Two Bodies not, as has been thought, as a legal proof against the foreign birth of Mary Queen of Scots, but as a way of embodying and sacralizing the disputed historical relations of England and Scotland. Plowden’s sacralizing metaphors of embodiment transform the highly contentious English claim of Scotland’s historic vassalage into the indisputable and timeless truth of political theology.
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Hill, Jonathan. "Markets and the common law." Legal Studies 5, no. 3 (November 1985): 320–30. http://dx.doi.org/10.1111/j.1748-121x.1985.tb00330.x.
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The law relating to markets illustrates the extent to which the English legal system bears the indelible stamp of its historical origins. Despite a mass of legislation during the last one hundred and fifty years, the common law of markets has retained much of its significance. Although aspects of the common law dating from the Middle Ages are singularly ill-adapted to contemporary social and economic conditions pressure on parliamentary time and the rigid application of the doctrine ofstare decisis combine to preserve this distinctly anachronistic area of the law.
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Nottage, Luke. "Form and Substance in US, English, New Zealand and Japanese Law: A Framework for Better Comparisons of Developments in the law of Unfair Contracts." Victoria University of Wellington Law Review 26, no. 2 (May 1, 1996): 247. http://dx.doi.org/10.26686/vuwlr.v26i2.6167.
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There was talk of change in the law of contract in the United States, England, New Zealand and Japan in the 1990s. Often this was linked to broader trends of internationalisation. This article builds on the "form-substance" framework proposed by Atiyah and Summers, focusing on the fine print doctrine, the duty of good faith, and the law of unconscionability and undue influence. It argues that developments in these areas of contract law, which control unfair contracts, tend to be consistent with the overall orientation of each national legal system. This suggests that counter-systemic developments in each legal system's contract law will be met by more resistance than expected. Further, those overall orientations are not necessarily convergent, and this is likely to affect the impact of international developments in contract law on each legal system.
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Benton, Lauren, and Benjamin Straumann. "Acquiring Empire by Law: From Roman Doctrine to Early Modern European Practice." Law and History Review 28, no. 1 (February 2010): 1–38. http://dx.doi.org/10.1017/s0738248009990022.
Full textAbstract:
What role did the Roman legal concept of res nullius (things without owners), or the related concept of terra nullius (land without owners), play in the context of early modern European expansion? Scholars have provided widely different answers to this question. Some historians have argued that European claims based on terra nullius became a routine part of early modern interimperial politics, particularly as a response by the English and French crowns to expansive Iberian claims supported by papal donations. Others have countered that allusions to terra nullius marked a temporary phase of imperial discourse and that claimants relied more often on other rationales for empire, rarely mentioning res nullius or terra nullius and often explicitly recognizing the ownership rights, and even the sovereignty, of local polities and indigenous peoples.